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[2012] ZAWCHC 371
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F dT v C dT (25394/10) [2012] ZAWCHC 371 (4 December 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case no: 25394/10
In the matter between:
S
F D T
.....................................................................................................................
Applicant
and
C
D T
....................................................................................................................
Respondent
(born
VON F U P)
JUDGMENT DELIVERD THIS
4th DAY OF DECEMBER 2012
DOLAMO, AJ
[1] This is an
application brought in terms of rule 33(4) for an order separating
the issues in a divorce action which was instituted
by respondent
(plaintiff in the divorce action) against applicant (defendant in the
divorce action).
[2] The parties were
married to each other on 17 July 1992 in Hamburg Germany;: out of
community of property and profit and loss
and by antenuptial contract
which incorporated the accrual system specified in Chapter 1 of the
Matrimonial Property Act 88 of
1994 (the “Matrimonial Property
Act”). Clause 9 of the antenuptual contract between the parties
provided as follows:
"The intended
wife accepts the donations in 6 and 8 on the conditions stipulated
therein and in consideration thereof waives
any present of future
right whatever that she might have to claim maintenance for herself
(but excluding maintenance for any dependent
child or children born
of the marriage) on the dissolution of the intended marriage in
whatever manner and for whatever reason
and regardless of the conduct
of the parties.”
[3]
In the divorce action the respondent claimed
inter
alia
an order that the applicant’s
and respondent’s parental rights and responsibilities in
respect of their minor daughter,
L M H d T (born on 29 September
1994) (“L”) be governed by the terms of a parenting plan
attached to the particulars
of claim; maintenance in respect of L at
the rate of R8 500.00 per month, as well as her medical, educational
and related costs.
(If the divorce action is set down for trial after
L attains the age of majority, she will be able to pursue her
maintenance claim
in the divorce action in her personal capacity in
terms of Rule 15(1).); maintenance in respect of herself at the rate
of R30 000.00
per month (to be reduced to R20 000.00 by 1 January
2013), as well as her medical costs, linked with an order that this
amount
be reduced by R1 000.00 for every R285 000.00 in excess of
R4.4 million which she will retain on divorce, together with such
amount
as she may be awarded in terms of her accrual claim; in the
event of being awarded an amount of less than R4.4 million (together
with her net assets as at date of divorce), an order that the
applicant provide for her accommodation needs by making available
to
her a home purchased in his name for a maximum purchase price of R3.8
million and ancillary costs relating to such property;
a furniture
claim of R250 000.00 as maintenance to enable her to furnish and
equip a home; and an order in terms of section 3 and
4 of the
Matrimonial Property Act that the applicant pay to her an amount of
money equal to one half of the difference between
the accrual of
their respective estates.
[4] For her maintenance
claim Respondent. relied on the factors set out in section : 7(2) of
the
Divorce Act 70 of 1979
. These were she and that the applicant;
have been married for eighteen years; that she had compromised her
career opportunities
to; care for their children (they also have a
son born on 4 August 1992 who is not yet self-supporting) and to
manage their home;
that she was unemployed: and currently seeking
work with no success; that it was unlikely, that her earning capacity
in the future
will be such that she will be able to support herself
from her: earnings; ;in accordance with the standard of living they
enjoyed
during their marriage; that her existing and prospective
means were such that she was unable to support herself from her own
resources
in accordance with the standard of living enjoyed during
their our marriage; and that they enjoyed an above-average middle
class
standard of living during their marriage.
[5] It is alleged further
in the particulars of claim that during the course of the marriage
the applicant’s estate has shown
a greater accrual than that of
the respondent. Accordingly on dissolution of the marriage the
respondent will acquire a claim against
the applicant for an amount
equal to one half of the difference of the accrual of the
parties’respective assets.
[6] Since clause 9
excluded her right to claim maintenance for herself, on dissolution
of the marriage and in order to succeed with
her claim for
.maintenance respondent attacked the waiver condition of this clause.
She alleged that clause: 9 of the antenuptual
contract was contrary
to public policy on one or more of the following grounds:
6.1. It deprived the
respondent of her statutory right , to approach a court to claim:
maintenance in terms of
section 7(2)
of . the
Divorce Act on
dissolution of the parties marriage by divorce;
6.2. It deprived the
respondent of her statutory right to approach a court to; claim
maintenance from defendant’s estate in
terms of section 2 of
the Maintenance; of Surviving Spouses Act 27 of 1990 on dissolution
of the parties marriage by; the; : applicant’s
death;
6.3. It provided for a
unilateral waiver of plaintiff’s right to claim
maintenance-from the defendant on divorce without a
corresponding
reciprocal waiver on the applicant’s part to claim maintenance
from the respondent on divorce;
6.4. It provided for
unilateral waiver of respondent’s: right to claim maintenance
from applicant’s estate on applicant’s
death without a
corresponding reciprocal waiver on the applicant’s part to
claim maintenance from the respondent’s
estate on her death;
6.5. It provided
pre-marriage waiver of the respondent’s right to claim
maintenance from defendant (which may or may not eventuate)
at a
future uncertain date during the parties’ marriage which the
parties at the time of the waiver could not know and in
fact did not
know all the jurisdictional facts and circumstances; the court is
enjoined to take into account in exercising its
discretion in terms
of section 7(2)of the
Divorce Act which
will be in existence at the
time the .waiver may become effective;
6.6. It provide
pre-marriage waiver of respondent’s right to claim maintenance
at a future uncertain date on applicant’s
death when the
parties at . the time of the waiver could not and in fact did not
know all the jurisdictional facts and circumstances
the court is
enjoined to take into account in exercising its discretion in terms
of subsections 2 and 3 of the Maintenance of Surviving
Spouses Act
which could be in existence at the time the ; waiver may become
effective;
6.7. It is contrary to
the provisions of section 36 of the Constitution of the Republic of
South Africa in as much as if deny the
respondent the right of access
to any court to claim personal maintenance;from the applicant either
on divorce or death;
6.8. It is contrary to
the provisions of section 10 of the Constitution of the Republic of
South Africa in as much as it infringes
the respondent’s right
to dignity in that, without any maintenance contribution from the
defendant on dissolution of the
marriage she. will not be able to
support herself according to the standard of living she was
accustomed to during the parties’
marriage in circumstances
where she, but for such waiver, would have been awarded spousal
maintenance in terms of
section 7(2)
of the
Divorce Act;
6.9. It
is contrary to
the provisions of section 9(1) of the Constitution of the Republic of
South Africa which prescribes the right to
equal protection and
benefit of the law in that it unilaterally deprive plaintiff of the
protection and benefits of
section 7(2)
of the
Divorce Act and
section 2 and 3 of the Maintenance of Surviving Spouses Act while it
does not reciprocally deprive the applicant of such protection
and;:
benefit.
[7]
In the alternative the respondent averred in her particulars of claim
that in
:
terms of
section 7(2)
of the
Divorce Act a
court has an overriding
discretion to order the payment of maintenance in favour of a spouse
on dissolution of the parties
5
marriage in the absence of a “written agreement” in the
past with regard to the payment of maintenance by one party
to the
other as contemplated in
section 7(1)
of the
Divorce Act. As
a result
she averred that an antenuptual contract in which a spouse waives the
right to claim maintenance, on dissolution of the
parties’
marriage does constitute a written agreement regarding the payment of
maintenance by one: party to the other as
contemplated in
section
7(1).
of the
Divorce Act and
therefore alleged that a court will,
have an overriding discretion to order for a spousal maintenance in
her favour having regard
to the factors set out in
section 7(2)
of
the
Divorce Act notwithstanding the
provisions of clause 9 of the
antenuptual contract.
[8] In conclusion the
respondent submitted that clause 9 of the antenuptual contract was
invalid in its entirety alternatively that
it is severable from the
accrual provisions contained in clauses 1 to 5 and 7 of the
antenuptual contract
[9]
The donations referred to in clause 9 was an immovable property which
was situated at 58 Twickenham Avenue, Auckland Park, Johannesburg
and
a sum of R300 000.00 (three hundred thousand Rand). Respondent
acknowledged in her particulars of claim in the divorce action
that
she had received the; immovable property donation, pursuant to clause
6.1 of the antenuptual contract, but was.unable to.restore
it since
the property in question had been sold. In lieu of restitution of the
benefits she received in terms of clause 6.1 of
the antenuptual
contract, the respondent tendered to make such substitute restitution
as the court may deem fit As regards the
sum of R300 000 she aileged
;
that she had not received .in full this sum of money but nevertheless
tendered restitution of what she had received till then.
[10]
The applicant in his plea to the divorce action, admitted to the
irretrievable break-down of their marriage and that: there
were no
reasonable prospects of a restoration of a normal marriage between
them but denied that this break-down v/as brought
about by the
factual circumstances alleged by the respondent:
:
He also denied that clause 9 was invalid and pleaded that the
respondent had affirmed ^nd given effect to the ante-nuptuai
contract and accordingly couId not approbate ancj reprobate.
[11]
Attempts at settling the divorce matter has, according to the
parties- proved unsuccessful. As a result of intractable positions
in which the parties found themselves the applicant launched the
present application for an order that the question of law or
fact,
being the validity of clause 9, be decided separately from any
other question, and that all further
proceedings in the action be stayed until suph question has been
decided. The applicant alleged
that the issue of the validity, and
enforceability of clause 9 of the ante-nuptial contract is an issue
which can conveniently
be decided before any evidence is led
separately from any other condition.
[12] This was disputed
by the respondent who;alleged that in order to. establish that
clause 9 is contrary to public policy she.
intends to lead
detailed^evidence, more particularly about her current earning
capacity and future earning capacity; applicant’s
current and
future earning capacity;; applicant’s current assets and
liabilities as well as his access to additional funds;;\their
standard of living during the marriage; her reasonable maintenance
needs and requirements and obligations; the contributions
she made
to the children and her family during her marriage; the prejudice,
depravation and. indignity she. will suffer if she
was precluded
from pursuing her maintenance claim on divorce;. and the extent of
accrual claim inasmuch as this will have a material
bearing on any
prospective means. This, evidence will be by herself as well as by
several expert witnesses. For this reason she
denied that a
separation of the issues in terms of
Rule 33(4)
, regarding the
validity of clause 9 of the ante-nuptual contract, will eliminate
all evidence in regard to her maintenance or
the applicant’s
ability to pay. She also alleged that even if the court could hold
that clause 9 of the ante-nuptual contract
was invalid and
unenforceable this will not dispense with the need for evidence
which will also be required on other issues in
the divorce.
According to the respondent the proposed
rule 33(4)
separation of
issues will result in the unnecessary duplication of evidence with
potentially conflicting credibility findings
and a considerable
lengthening pf .the proceedings.
[13] She anticipated
that since the issue which the applicant seeks to dispose of in
terms of
rule 3
3(4) was highly controversial, there was a real
possibility that the decision will be: appealed against by the
unsuccessful party
which will only delay the finalisation of the
divorce.
[14] The question for
determination is whether a separation of the: issues: in terms of
rule 33(4)
as contemplated by the applicant will have the desired
effect ofconveniently deciding the question of the validity of
clause
9 of the ante-nuptial contract and which would lead to
curtailing the proceedings in the divorce action.
[15]
The question of separating issues in a trail is governed by
Rule
33(4)
which provides that if in any pending litigation it appears to
the court
mero moto
that there is a question of law or fact which may conveniently be
decided either before, any evidence is led or separately from
any
other question, the Court may make an order directing the disposal
of such a question in such manner as it may deem fit and
may order
that all further proceedings be stayed until such question has been
disposed of, and the Court shall on the application
of any party
make such order unless it appears that the question cannot be
conveniently decided separately.
[16]
The applicant submitted that it was common cause that the parties’
marriage has irretrievably broken down with not
prospects of
reconciliation; that the one minor child would soon turn major (has
since turned major) and that the. ante-nuptial
contract incorporated
the accrual system as specified in Chapter I of the
;
Matrimonial Property Act 88 of 1984
and as such the claim based: on
accrual would arise on divorce and can be computed then and
therefore not an issue to be debated
in the action. There were other
issues arising from , the .applicant’s, counter-blaim and
conditional counter-claims; such
as non-compliance with clause 8 of
the ante-nuptial contract none of which, he submitted, affects the
question of the validity
of clause 9 which is raised by the
respondent . He. submitted, that .the grounds on which the
respondent was attacking, the validity
of clause 9 of,the
ante-nuptial contract were issues of law on which the court can
adjudicate either without evidence or with
minimal amount of
evidence unrelated to any other remaining issue on the pleadings.
[17]
As regards the respondent’s submissions that she would have to
lead evidence, of herself and possibly of experts, to
prove that
clause 9 was contrary to public policy because this involved an
assessment of the facts as set out in
section 7(2)
of the
Divorce
Act and
a consideration of the effect of the maintenance waiver at
the time of divorce, Mr Van Rooyen SC who appeared for the
applicant,
submitted that this amounted to circular reasoning.
According to him the validity of clause 9 does not depend on
evidence about
standards of living nor income. Neither is her living
standard a matter of public policy. Accordingly he submitted that
the public
has no interest in the waiver by an individual of a
contingent claim for maintenance. The rest of his submission, in my
view,
went into the merits of whether clause 9 was valid
or
not, which is not what this court is asked to determine at this
stage. What this court is asked to determine at this stage
is
whether it would be convenient to separate the question of the
validity of the clause from other issues in the divorce action.
[18] Respondent’s
main ground for opposing a separation of issues is that this will
result in the. same evidence being canvassed
at two different,
hearings with potentially conflicting credibility findings and
determinations. This will considerably lengthen
the proceedings and
inconvenience witnesses and the court. Furthermore this will cause
an unnecessary delay in finalising . the
divorce and the
determination of the remaining issues. Ms Gassner SC, who appeared
for the respondent, was furthermore of the
view that the applicant
resorted to. the
Rule 33(4)
application in an attempt to avoid
discovery procedures directed at establishing his income, assets and
liabilities, as well
as his access to trust funds. Finally she
submitted that such a separation will lead to an escalation of legal
costs.
[19]
While the Court may
mero moto
order a separation of issues when it deems it convenient to deal
separately with any issue of law or fact the latter part of
Rule
33(4)
makes it clear that a court shall on the application of any
party grant an order for the separation of issues unless it appears
that the questions cannot be conveniently decided separately. This
view is supported by the authorities. In
Devel
(Edms) Bpk v Vorster
2004(4) SA 481
Nugent JA held at paragraph [3] that:
“
[3] Before
turning to the substance of the appeal, it is appropriate to make a
few remarks about separating issues.
Rule 33(4)
of the Uniform
Rules- which entitles a Court to try issues separately in
appropriate circumstance's is aimed at facilitating
the convenient
and expeditious disposal of litigation. It should hot be assumed
that that result is always achieved by separating
the issues
.
In
many cases, once properly considered, the issues will be found to be
inextricably linked, even though, at first sight, they
might appear
to be discrete. And even where:the issues are discrete, the
expedition disposal of the litigation is often best
served by
ventilating all the .issues at one hearing, particularly where there
is more than one issue that might be readily dispositive
of the
matter It is only after careful thought has been given to the
anticipated course of the litigation as a whole that it
will be
possible properly to determine whether it is convenient to try an
issue separately. But
,
where
the trial Court is satisfied that it is proper to make such an order
and, in all cases, it must be satisfied before it does
so it is the
duty of that Court to ensure that the issues to be tried are clearly
circumscribed in this order so as to avoid
confusion. The ambit of
terms like the
‘
merits’
and the ‘quantum’ is often thought by all the parties to
be self-evident at the outset of a trial, but,
in my experience
,
it
is only in the simplest of cases that the initial consensus
survives. Both when making rulings in terms of
Rule 33(4)
and when
issuing its orders, a trial Court should ensure that the issues are
circumscribed with clarity and precision. It is
a matter to which I
shall return later in this judgment ”
[20]
In
African Bank v Covmark Marketing
CC
2008(6) SA 46 (C) at 51 Moosa AJ
held that it was clear from the authorities that it is incumbent
upon a party opposing an application
for a separation, in terms of
Rule 33(4)
, to satisfy the court that .the application should not be
granted and that the balance of convenience favours him; In
Braafv
Fedgen Insurance Ltd
1995(3) SA 938
(CPD), it was held.that the keyword is “conveniently”
which mean convenient to the court in the first
instqnqe and ajso to
both parties. In
Minister of
Agriculture v Tongaat Group Ltd
1976(2) SA :357 (D & CLD) Milner at 362T held that: “
it
goes without saying that it is not the- convenience of any one only
of the parties, or of the Court only that is the criterion”
and at 363A that:
“
a most
important consideration will, no doubt, usually be whether a
preliminary hearing for the decision of such questions would
materially shorten proceedings."
and at 363D:
".....
It
appears to be used to convey also the notion of appropriateness: the
procedure will be convenient if, in all the circumstances,
it
appeared to be fitting, and fair to the parties concerned.
[22] While lauding the
benefit of a separation of issue Miller J cautioned [at 363D]: that:
"
. .
it must be borne in mind
that the grant of an application under the Rule, although it might
result in the saving of many days
of evidence in Court, might
nevertheless cause considerable delay in the reaching of a final
decision in the case because of
the possibility of a lengthy, barren
interrogation between ., the conclusion of the first hearing at
which the special question
one canvassed and the commencement of the
trail proper.
The
same sentiments were echoed by Mlambo JA (as he then was) in
:
Privest
Employee
Solutions (Pty) Ltd v Vital Distribution Solutions (Pty) Ltd
2005(5)
SA 276
(SCA) at 282 par[27] as
follows:
“
[27] In the
present case, in spite of the separation of the issues as sanctioned
by the trial Court in terms of Rue 33(4), almost
all causes of
action and defences are still open to the parties. The underlying
dispute (between the parties) has yet to be determined.
For example,
thd defence of estoppel raised by the appellant, and which. was
foreshadowed in the particulars^ of claim, still
awaits its day in
court. Neither counsel could deny that all the litigation thus far
has not resulted in the expeditious disposal
thereof despite the
fact that it has now gone through, three Courts at monumental cost,
no doubt, to the litigants. I refer to
this scenario simply to voice
our disquiet at yet another manifestation of a failure to ensure
that a separation of issues in
terms of
Rule 33(4)
has the potential
to curtail litigation expeditiously. Courts should not shirk their
duty to ensure that at all times, when approached
to separate
issues, there is a realistic prospect that the separation will
result in the curtailment and expeditions disposal
of litigation.”
[22]
In
CNA
v MTN
2010(3)
SA 382 (SCA) at paragraph [90] the court stated; that:
[90]
This court has warned that in many cases, once properly considered,
issues initially thought to be discrete are found to
be inextricably
linked, “And m even where the issues are discrete, the
expeditious disposal of the litigation is often
best served by
ventilating all the issues at one hearing
.
A trial court must be
satisfied that it is convenient and proper to try an issue
separately.”
[23]
With the principles gleaned from the aforesaid authorities in
mirid.l turn to determine whether the separation of the question
of.
the validity of clause 9
:
of the ; ante-nuptial contract, from the rest of the issues in the
divorce will be convenient in : ; the sense of leading to
an
expeditious disposal of the matter. One particular aspect; in my
view holds the key
in casu
to the determination of this question. Mr Van Rooyen submitted that
the question of the validity of clause 9 is a question of
law ;
which can be determined without leading evidence or the hearing: of
minimalj evidence. The problem with leading evidence
as Leach J
pointed out in
Maa de:^ Burgh v
Guardian National Insurance Co Ltd
1997(2) SA 187 at 189J, is that there: is no room in
Rule 33(4)
for
a court, on ordering separation of issues, to make any order in
respect of what evidence, may or may not be relevant All'
a
court is
:
empowered to do is to order that certain issues be tried separately
from others. Once' the order has been issued directing an
issue to
be disposed of separately and that issue is then before court, it is
for that court to decide: what evidence may or
may not be relevant
to such issue. The fact that Mr Van Rooyen contemplates that
evidence may be led in determining the validity
of clause 9 of the
ante-nuptial agreement is in my view, indicative of the fact that
the benefit of a speedy resolution, hoped
to be derived from the
separation, may not eventuate. There is a real likelihood that the
parties may for example lead evidence
as to the background leading
to the inclusion of the clause, the reasons for the inclusion; its
interpretation; its severability
from the rest of the
:
agreement and whether the clause is against public policy etc. all
of which will negate the envisaged shortening of proceedings.
This,
if it happens, and; there is a high likelihood that it ma^ would
come at considerable costs to the litigants coupled with
the other
attended problems of costs and delay in the expeditious disposal of
the matter.
[24]
For the reasons set out
supra
1= am of the view that the question of the validity of clause 9 of
the ante-nuptial contract cannot conveniently be decided separately
from all the other questions in the divorce matter. It will be
convenient to hear the whole matter at once to ensure a speedy
disposal which, judging; from what has already transpired between
the parties appear to be in the best interest of all. This
matter no
doubt has invoked strong emotions. Litigation conducted in a highly
combative atmosphere such as this one which does
not bode well for
any of parties and has to be finalizes without undue delay. The:
sooner it is disposed of the better for the
parties so that they can
.move on with their lives.
[25] The application is
accordingly dismissed with costs which costs shall include the
employment of two counsels.
DOLAMO, AJ