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[2014] ZAWCHC 56
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S.B v R.B (13622/2011, 36/2009) [2014] ZAWCHC 56; [2015] 2 All SA 232 (ECLD, George) (16 April 2014)
Republic of South
Africa
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CIRCUIT
LOCAL DIVISION, GEORGE)
HIGH
COURT CASE NO: 13622/2011
MAGISTRATE’S
COURT CASE NO: 36/2009
DATE:
16 APRIL 2014
In the matter
between:
S B Plaintiff
And
R B Defendant
Court: Justice J
Cloete
Heard: 4, 6 and
7 March 2013, 5 August 2013, 3, 5 and 6 March 2014
Delivered: 16
April 2014
JUDGMENT
CLOETE J:
Introduction
[1] This is a
divorce action. The parties were married on 26 September 1998 out of
community of property by antenuptial contract
with the express
exclusion of the accrual system. The antenuptial contract was not
made available during the trial, but there was
no indication from
either party that it is anything other than the standard form
contract which also excludes community of property
and profit and
loss. There are no children born of the marriage.
[2] The parties
separated permanently during November 2008, and it is common cause
that the marriage has irretrievably broken down.
The plaintiff (the
wife) issued summons in May 2009. The trial commenced in March 2013
but was bedevilled by delays and amendments
to pleadings. Most of the
evidence was led, and the trial eventually concluded, during March
2014.
[3] Apart from
seeking a decree of divorce the plaintiff advances various claims
against the defendant. The first claim is that
during the marriage
the parties agreed to form a joint estate, and that the plaintiff is
thus entitled to 50% thereof; alternatively,
that on the basis of a
contract concluded during the marriage, she is entitled to 50% of the
value of the defendant’s estate.
The second claim, which is
advanced as an alternative to the first, is for an order declaring
that a partnership was formed during
the marriage for the purpose of
a commercial enterprise, namely the buying and selling of immovable
properties, coupled with the
usual consequential relief. The third
claim, which the plaintiff now accepts can only be advanced as a
further alternative to the
first claim, is for payment of R135 000
which is a portion of the sale proceeds of a Toyota RAV vehicle which
the defendant is
alleged to have donated to her during the marriage.
The fourth claim is for nominal maintenance from the defendant, which
I accept
is until the plaintiff’s death or remarriage,
whichever occurs first, given that no evidence was led to the
contrary.
The evidence
[4] The only
witnesses who testified were the parties themselves. At the outset it
must be stated that the plaintiff impressed as
an honest witness who
did not attempt to embellish her version. The same cannot be said of
the defendant who came across as arrogant,
evasive and at times
downright untruthful. There is no doubt that where the plaintiff’s
version differed from the defendant’s,
it is her version which
must be preferred.
[5] According to the
plaintiff she agreed to her ex-husband being awarded custody of their
two very young children for the sake
of her marriage to the
defendant. She accepted this arrangement because at the time the
parties lived in close proximity to her
ex-husband and the children
in Johannesburg. However at a stage after their divorce was
finalised, the ex-husband and children
moved to George and thereafter
to Knysna. This caused the plaintiff a great deal of unhappiness and
emotional pain. Although she
was cross-examined on sensitive and
highly personal issues concerning the sexual aspects of the parties’
relationship in
an apparent effort to both embarrass her and to place
the full responsibility for the breakdown of the marriage on her
shoulders,
it was the defendant’s subsequent evidence that the
major problem throughout the marriage was the plaintiff’s
difficulty
in dealing with the loss of her children. He gave no
evidence whatsoever about the parties’ sexual relationship; nor
did
he even imply that it had in any way contributed to the breakdown
of the marriage.
[6] The marriage was
a stormy one, although the defendant sought to downplay this. It was
characterised by frequent bouts of excessive
drinking which
invariably erupted into violent altercations. The plaintiff’s
evidence was that she endured physical, verbal
and mental abuse. The
defendant tried to portray the plaintiff as an equal participant in
the abuse which he similarly sought to
minimise. In any event it was
the testimony of both parties that between 1998 and 2004 the
plaintiff left the defendant on various
occasions, and that she left
him again in June 2004 with the intention never to return. At the
time the defendant was the owner
of two immovable properties, one in
Skeerpoort which was the parties’ home, and the other in
Plettenberg Bay, which was their
holiday home and which had been
purchased specifically to enable the plaintiff to spend time close to
her children.
[7] On 28 June 2004
the defendant wrote the plaintiff a letter, the body of which is as
follows:
‘My darling
[S]
This is a first for
me in that I’ve never put my feelings down on paper! Especially
one that will be such a long letter.
This is the most
important thing I’ve ever written down. I do not function
without you. My mind cannot think of anything except
you. I cannot
sleep, cannot eat (lost 4 kgs) cannot concentrate.
Let me start off by
telling you that you were absolutely right by leaving me. I had no
right, or place to treat you like I did.
I was a bastard and deserved
it. I never realised just how much you did for me or gave me until
you left. You have scared the shit
out of me! I think this was the
shock that I needed. I am a useless arsehole without you and this is
why I have devised this plan
to win you back. No me ME, ME, ME. It
will be US and not ME, OURS & NOT MINE.
There are a lot of
different areas where I need to change and adapt and I DO know that I
can. I’m gonna list them all to let
you know how committed I am
to this marriage and relationship. You are the best thing that has
ever happened to me and you mean
more to me than life itself. I
consider it a privilege to be your hubby.
I have been trying
to remember all the things to write down as I drove all over Jo’burg
today. O.K. here goes:-
1. The drinking has
to be reduced to a socially acceptable level. I think this is very
important as most/all of our fights start
because of alcohol. I can
stop drinking altogether if you want. It’s YOUR choice! To
prove this I will take that injection
that [K] took.
2. There will be no
more verbal abuse, down-putting and just plain nastiness. You know,
the type where you say “… arsehole”.
3. I will buy you
this Honda Luxline, instal a Nokia cell kit and register it in your
name and give you an invoice stating that
it’s paid in full.
And the papers.
4. This car is,
however a “stop-gap” as I intend to buy you a 200 SX or
Rav 4. Your choice! Again the rules as in #3
apply as far as title of
the vehicle goes.
5. I have got to
start being the father and step-parent that you are. You are shining
example in this area and all I’ve ever
been is a bastard.
Although our recent trip to Plett showed you I can do it. I have
attached a little note from [B] that brought
a tear to my eye. He is
so sad about us. He loves you to death.
6. I will start a
Trust Fund, this month, for [C] and [T]. This is to save for a
university education if either/both can qualify.
I will put R500 p.m.
in this account and to show you commitment I will let you have all
the passwords and I will not be able to
draw from it. Only you can
(although I hope you wont!). If neither child goes to university then
at least we can use the money
to buy them furniture or whatever to
get them going in adult life.
7. I offered you the
other day, half ownership on both of the houses. Well that’s
not a good enough deal if you ask me! I
think we should change our
marriage status to community of property. Now, I don’t know the
law but surely we can amend the
certificate somehow? That way you
have half of everything. Like I said OURS, OURS, OURS not MINE, MINE,
MINE!
8. I will pay the
servants. That’s not your problem anymore.
9. I will pay all
costs for the pets. This includes the horses. I love them too so why
should you take all the costs? This includes
vets fees, doggie
parlour, food, every bloody thing! You will never spend another cent
on our animals.
10. Standard Bank
Gold Card returned. No questions.
11. Standard Bank
Petrol Card. You’ll never pay for petrol again.
12. Cell phone
account. You’ll never pay for a call again.
13. You’ll
love this one!
I will fly the kids
(or we go there) every six weeks. This means that you will see the
kids nearly 9 times a year as opposed to
3 to 4 at the moment. If I
could do more in this area I would [S].
14. VINYLWORLD.
Again your choice. Whatever you wanna do, I’ll back you.
15. WORK. Ah now
there’s a subject. What do you wanna do? If you wanna work a 40
hour week or just 3 x mornings it’s
your choice. You can work
for [R], me, anyone, up to you. If I was you I would spend more time
on your hobbies ‘cos you won’t
have to worry about the
money.
16. Why don’t
we “date” again. Lets go to movies and go dancing. I
mean, lets face it, you can almost dance as
good as me!
17. The next summer
in Europe (2005) I will take you there. We will go to Cardiff too to
see where your dad lived. I’m sure
[R] can accommodate us.
18. I know you gave
the kids to [C] for us and we both know that there’s not much
we can do to get them back but if we see
the slightest chink in his
armour we’ll nail him. On this though I can give no guarantees.
19. I will copy the
“swinging” pics onto a c.d. and give it to you. You can
then do what you will with it. All other
porn will be deleted.
20. The building
alterations will be carried out as per your instructions. [J] has
already started painting.
21. All of what I
have proposed here can be legally endorsed by a lawyer of your choice
at my expense.
22. If there’s
anything I’ve left out please let me know. I have done this
whole thing for one reason. I love you and
I’m so sorry.’
[emphasis supplied]
[8] The plaintiff
responded by letter to the defendant on the same day, as follows:-
Dear [B]
When I started
reading your letter I burst into tears because, besides the financial
security I needed, all these things is (sic)
what was lacking in our
marriage. You know, when I met you, I fell so head over heels in love
with you, and over the years getting
to know you better, I started to
see another side of you I didn’t like at all, but you still had
my love, and I was prepared
to overlook all those things. The
fighting, the jelously (sic) the violence, the mental intimidation,
all of those. I pretended
they never happened and carried on loving
you. But recently I seem to have changed inside of me. I started
thinking that this is
not what I want anymore.
All your offers are
very genourous (sorry 4 the spellig (sic) ) and I can see that you
mean them, but can you follow through? You
cannot change who you are
inside [B] and I’m very sceptical. I cannot let you or me go
through this again. I have had a lot
of time to think of many things,
where I would like to go and how I am gonna get there. I really want
to go to Knysna to be with
my kids, my heart is aching for them. I
have such a huge problem with them battling away while I was so
“comfortable”
with you. I want to be able to offer them a
better life and have all the things I have. I need to make amends!
I’ve never
forgiven myself for giving them up. NEVER!!! And I
feel that they need me so much!
I have found such
strength in me that I thought I never had. I haven’t once
doubted my decision to leave you [B]. Like I said
before, it’s
as though my whole system has totally shut you out, like it’s
just tripped and for me to come back &
accept your offers would
be false and not my personality.
I think that you
need to concentrate more on your “changing” than on your
financial promises, because anybody with money
can offer that! If you
were ever to win my heart back, you have to show me that you can
change, you would have to join me and my
children in Knysna and not
living with us either, but visiting us & proving you have
changed.
You know [B], have u
asked yourself what is true love? Is it something you are only
prepared to give someone who is with you, or
is it something that is
totally unconditional? When I asked u for the plotter so I can make
some money you said no, it’s
almost like you want me to suffer
without you. Like on one hand you have all these “gifts”
with a carrot dangling and
in the other, there’s nothing and I
have to choose. True love is not possesive (sic) or controlling, it’s
allowing
that person the freedom to grow, and wishing them the best
of everything, whether you have them or not!
I need you to
understand that the decision I made to leave you was not only my
problems with you, but my need & desire to be
with my children,
full time. I can’t be a holiday mom anymore, and I saw that in
our last trip to Knysna. If I don’t
do this, I will never be
happy, I will never stop thinking how I could have done what I did. I
am only here in Skeerpoort to try
and get myself financially stable
so I can offer & be an example to my children.
If you can somehow
see my heart, I hope you will understand, and who knows what’s
going to happen in the future, none of us
do.
Now I have totally
poured my heart out to you, and that’s all I can offer you. If
you would like to call me you can!’
[9] Although the
defendant first testified that the plaintiff rejected the offers
contained in his letter to her, he conceded under
cross-examination
that the opposite was in fact the case. He admitted that when he
wrote her the letter he would have done anything
to win her back; and
that ‘I would have offered her Australia if I had Australia to
offer’. He admitted that the ‘plan’
contained in
the letter was to offer the plaintiff ‘financial reward for
coming back’ as well as mending his ways.
By “financial
reward” he meant financial security. His evidence was also that
he took up the plaintiff’s invitation.
He telephoned her, they
met, and during that meeting he convinced the plaintiff to return and
resume the marriage relationship
on the basis of the promises and
undertakings contained in his letter to her.
[10] The defendant
admitted that it was on the strength of these promises and
undertakings that the plaintiff returned and resumed
the
relationship; and that shortly thereafter they consulted with an
attorney recommended to the plaintiff to establish whether
they could
formally change their matrimonial property regime to one in community
of property. The parties were advised that they
would need to get
divorced and remarried in order to do so. It was the plaintiff’s
evidence that on the strength of this
advice, which at the time was
not an option for them, the parties immediately thereafter orally
agreed that they would nonetheless
henceforth continue with the
marriage as if they were married in community of property. When asked
during cross-examination to
explain her understanding of being
married in community of property, she replied that ‘I
understood that I would become half
owner of everything plus a car. I
accepted [the offer] on that basis’. She was asked whether her
assets would also have been
included in this arrangement. Her
unchallenged response was that ‘I didn’t have any assets
at that stage’.
[11] The defendant
gave contradictory versions on what transpired after receiving the
attorney’s advice. First, he testified
that there was no
further discussion on the issue and the parties ‘just left it’,
implying that they continued with
the marriage on the basis that it
would remain one out of community of property. When pressed during
cross-examination on how improbable
this was, the defendant came up
with another version, namely that he had already established on the
day before the meeting with
the attorney that a change of matrimonial
property regime was ‘not possible’; and that in
accompanying the plaintiff
to the attorney he was simply ‘going
through the motions’ because he wanted the plaintiff to hear
this from the attorney
instead.
[12] The defendant
nonetheless admitted that he fulfilled a number of the promises
contained in his letter. He reduced his alcohol
consumption to an
acceptable level; he tempered his behaviour towards the plaintiff; he
purchased a Toyota RAV in 2007 which was
registered in her name; and
as far as he could recall, he returned the plaintiff’s bank
cards to her and took over those
running costs of the household to
which he had referred. His evidence in this respect is consistent
with that of the plaintiff’s.
[13] The defendant
however denied that by purchasing and registering the vehicle in the
plaintiff’s name he had any intention
of passing ownership
thereof to her. He claimed that he had only registered the vehicle in
her name because she had a history of
accumulating speeding fines
which he was tired of having to pay. He did not explain why, if this
were the case, he had never previously
registered any of the vehicles
which were used by the plaintiff, in her name. The plaintiff denied
that she had such a history
and testified that the defendant had
never informed her that he had always intended to nonetheless retain
ownership of the vehicle.
As far as she was concerned he was simply
fulfilling one of his promises contained in the letter which she had
accepted.
[14] After resuming
the marriage relationship the plaintiff qualified as an estate agent
and became employed as such during 2006.
Her evidence was that,
consistent with the spirit of the agreement reached during June 2004,
the parties together commenced what
she referred to as ‘property
deals’.
[15] Three immovable
properties were purchased during 2006. The first was a plot, also in
the Skeerpoort area, which was bought
for the specific purpose of
building a family home thereon. The purchase price was R415 000 and
the property was registered jointly
in their names. The second was a
property in Westlake which was purchased for R420 000 and registered
in the name of the plaintiff,
who qualified for mortgage bond finance
at a time when the defendant did not. The third was a property in
Fouriesrus which was
purchased for R1.1 million and registered in the
defendant’s name.
[16] It was the
plaintiff’s evidence that the parties jointly found the plot in
Skeerpoort; and that a bond was registered
over the property. The
arrangement was that whoever could pay the bond instalments would do
so; but the defendant in fact paid
the majority thereof. The plot was
sold by the parties in 2008 for R550 000. The net proceeds were paid
into the defendant’s
money market account and used to fund
their lifestyle.
[17] It was also the
plaintiff’s testimony that she sourced the Westlake property
which fell within her sales area. The property
was later sold by the
parties during 2007 for R600 000 and again the proceeds were paid
into the defendant’s money market
account and used for the same
purpose.
[18] The plaintiff’s
evidence was further that she sourced the Fouriesrus property.
Improvements were effected thereto. She
paid for the bond
registration costs and electrical compliance certificate; and handled
all of the accounts and payments involved
in the renovation (although
the cost was funded by the defendant) as well as contributing to its
improvement in various other ways,
including landscaping and planting
the garden. The parties moved into the property for a short period in
order for the plaintiff
to prepare it for sale. She found the
purchaser and it was sold for R1.7 million in 2007. The profit was
split equally between
the parties on the one hand and a third party
who had physically attended to some of the renovation work on the
other. Again the
proceeds were paid into the defendant’s money
market account and utilised to fund the parties’ lifestyle.
[19] It was the
plaintiff’s unchallenged evidence that there were three reasons
why the parties married out of community of
property with the
exclusion of the accrual system. The first was that her former
mother-in-law was engaged in litigation with her
at the time. The
second was that the defendant’s former wife had received a
substantial settlement in their divorce and the
defendant did not
want this to happen again. The third was that the plaintiff had
wished to make it clear to the defendant that
she was not marrying
him for his money. The defendant’s evidence was that he had
previously been married in community of
property and that he had
taken legal advice to marry the plaintiff out of community of
property.
[20] It was clear
from the defendant’s evidence that he is not someone who is
careless with his assets and other financial
resources, nor is he
prone to sharing them willingly. The offers that he made to the
plaintiff in his letter of June 2004, and
the steps which he took
thereafter to implement some of those offers, serve to emphasise just
how desperate he was to secure the
plaintiff’s return to the
marriage.
[21] It was
nonetheless the defendant’s version that it was irrelevant to
him that the Skeerpoort plot, which he conceded
was purchased to
build the new family home, was registered in both parties’
names, because ‘I never dealt with this,
she did, it really
didn’t matter while we were married if it was in both of our
names, I paid for it and I sold it’.
He then changed his
version, claiming that he had not known that the plot had been
registered in their joint names until his current
lawyer had pointed
this out to him. He made these claims despite conceding that he had
signed the relevant transfer documents and
that the plaintiff had
also ‘probably’ done so, although according to him he
could not remember. Further, and despite
his earlier evidence about
taking over various financial responsibilities of the household as
promised, as well as both parties’
testimony that the defendant
paid the bulk of the running costs of the household, he nonetheless
denied that he had used the funds
in his money market account to fund
their lifestyle. His evidence was that although the funds in that
account were used almost
exclusively for these expenses (given that,
on his own version, his income was almost non-existent by that stage)
the funds were
nonetheless only ‘for me, it was my money’.
[22] Needless to say
this version then also changed. The defendant claimed that he thought
that some of the proceeds of the sale
of the Skeerpoort plot had been
paid into the bond over the Plettenberg Bay property, and thereafter
withdrawn to pay for part
of the purchase price of the Westlake
property, which had been registered in the plaintiff’s name.
His evidence was that
the proceeds of the Westlake property were paid
into the money market account because this was his money, despite his
earlier concession
that it would not have been possible to purchase
the Westlake property at all without the plaintiff’s
assistance, given that
he did not qualify at the time for bond
finance.
[23] The defendant
conceded that the plaintiff had sourced the Fouriesrus property. He
denied that the plaintiff had made the contributions
to that property
about which she had testified. To the extent however that she might
have done so, those contributions were irrelevant
because ‘that’s
what wives do… I provided the lifestyle, I don’t give
her money for planting a few plants
and the keeping of the lawn’.
[24] From June 2004
the parties’ marriage improved significantly and remained this
way for some time. They decided to relocate
permanently to
Plettenberg Bay. The common home in Skeerpoort was sold, and in June
2007 the parties moved into the Plettenberg
Bay property.
[25] This property
(in which the defendant still resides) has a separate self-contained
unit which is rented out. The rental income
has been the defendant’s
sole source of income since June 2007. The plaintiff continued to
work as an estate agent for a
short period and then took over the
letting of the unit on a full-time basis. There was no evidence that
the defendant remunerated
her for this. The parties’ household
and other expenses were funded partly by the rental income but
supplemented to a significant
extent by the monies which had by then
accumulated in the money market account.
[26] The plaintiff’s
evidence was that when they moved to Plettenberg Bay there was about
R2 million in this account. According
to the defendant, by November
2008 when the parties separated permanently, some R900 000 was left.
This has now reduced to about
R270 000 because he has incurred legal
costs of R250 000, purchased himself a vehicle and ‘the rest is
gone because I earn
less than the cost of living is’.
[27] It was the
plaintiff’s evidence that after the move to Plettenberg Bay she
suggested that the RAV vehicle be sold. There
was insufficient
parking for guests renting the self-catering unit and the parties
already had another vehicle as well as a motorbike
for their use. The
defendant agreed that this was a good idea and the plaintiff sold the
vehicle for R145 000. The defendant suggested
that the proceeds of
the sale should also be put into the money market account, because
the more funds in the account, the greater
the interest that the
parties would earn thereon. The plaintiff agreed and, after keeping
R10 000, she paid over the balance of
R135 000. The defendant’s
version however is that the proceeds of the vehicle were only paid in
the first instance to the
plaintiff because the vehicle was
registered in her name. She thereafter transferred the proceeds to
him because he was the owner
thereof. He went even further with this
improbable version, denying that the plaintiff had retained any
portion of the proceeds
at all ‘because it was not hers to
take’.
[28] The marriage
again began to deteriorate in the time that followed the parties’
move to Plettenberg Bay. The plaintiff
left the defendant for a
period of about four months during 2008 but thereafter returned to
him. After a serious incident of abuse
at the hands of the defendant
in November 2008 (which the defendant denied) the plaintiff packed
two suitcases and left the defendant
for good.
[29] It is against
this background that I now turn to consider the plaintiff’s
various proprietary claims against the defendant.
Her claim for
nominal maintenance is dealt with thereafter.
The first main claim
for a division of the joint estate
[30] J Heaton: South
African Family Law (3rd ed) p103 explains the principle of
immutability in South African matrimonial property
law as follows:
‘Until the
commencement of the
Matrimonial Property Act 88 of 1984
, the
immutability principle applied in our matrimonial property law. This
meant that once a marriage had been entered into, the
matrimonial
property system chosen by the spouses remained fixed and could not be
changed. (Union Government (Minister of Finance)
v Larkan
1916 AD
212
; Honey v Honey
1992 (3) SA 609
(W).) This rule had serious
disadvantages as it often happens that the financial position of
spouses changes to such an extent
during their marriage that the
system they initially chose becomes totally inappropriate. For this
reason, the legislator relaxed
the immutability principle in the
Matrimonial Property Act by
creating several mechanisms for effecting
a postnuptial change of the matrimonial property system.
Firstly, for a
limited period, which has expired, certain spouses were permitted to
incorporate the accrual system into their marriage
out of community
of property simply by concluding a registered notarial contract…
Secondly, in limited
circumstances, the court has the power to order the immediate
division of the spouses’ matrimonial property
and to change the
couple’s matrimonial property system at the request of one of
the spouses.
Section 20
of the
Matrimonial Property Act empowers
the
court to order the immediate division of the joint estate and to
change the spouses’ matrimonial property system if the
conduct
of one of them seriously prejudices or will seriously prejudice the
interests of the other spouse in the joint estate.
Section 8
of the
Act confers a similar power on the court in respect of immediate
division of the accrual…
The last mechanism
for alteration of the matrimonial property system which the
Matrimonial Property Act introduced
is the joint application to court
in terms of
section 21(1)
for permission to change the matrimonial
property system…’
[emphasis
supplied]
[31] Having married
during 1998, the proprietary consequences of the parties’
marriage are governed by the Matrimonial Property
Act 88 of 1984
(‘the Act’) which came into effect on 1 November 1984,
and more particularly s 2 thereof, which provides
that:
‘2. Marriages
subject to accrual system.—Every marriage out of community of
property in terms of an antenuptial contract
by which community of
property and community of profit and loss are excluded, which is
entered into after the commencement of this
Act, is subject to the
accrual system specified in this Chapter, except in so far as that
system is expressly excluded by the antenuptial
contract.’
[32] Because of
their choice of matrimonial property system at the commencement of
the marriage as well as the facts of this matter,
the plaintiff, in
order to protect her rights under the June 2004 agreement, could
obviously not have invoked the remedies provided
in s 20 (i.e. the
immediate division of a joint estate) or s 8 (i.e. the immediate
division of the accrual whether in accordance
with the antenuptial
contract or on any other basis that the court may deem just). The
only step that she could have taken under
the Act, and only with the
full co-operation of the defendant, is that contained in s 21(1),
namely:
‘21. Change of
matrimonial property system.—(1) A husband and wife, whether
married before or after the commencement
of this Act, may jointly
apply to a court for leave to change the matrimonial property system,
including the marital power, which
applies to their marriage, and the
court may, if satisfied that—
(a) there are sound
reasons for the proposed change;
(b) sufficient
notice of the proposed change has been given to all the creditors of
the spouses; and
(c) no other person
will be prejudiced by the proposed change, order that such
matrimonial property system shall no longer apply
to their marriage
and authorize them to enter into a notarial contract by which their
future matrimonial property system is regulated
on such conditions as
the court may think fit.’
[emphasis
supplied]
[33] However,
because the parties never applied to court as envisaged in s 21(1),
the plaintiff is hit by the immutability principle
and is left
without any remedy to enforce the June 2004 agreement. The absurdity
of this consequence is demonstrated inter alia
by the decision in
Honey v Honey
1992 (3) SA 609
(W). In that case the parties were
married out of community of property by antenuptial contract, but
with the inclusion of the
accrual system. They thereafter concluded a
postnuptial contract which purported to exclude the accrual system.
Although notarially
executed, the postnuptial contract was not
sanctioned by court order in terms of s 21(1). The wife later
instituted divorce proceedings
and the court found that the
postnuptial contract was invalid and unenforceable, not only against
third parties but also inter
se, because the immutability principle
trumps, and renders void, any postnuptial variation of a matrimonial
property system not
sanctioned by court order under s 21(1) of the
Act.
[34] The absurdity
of the effect of the current legislative scheme is also highlighted
by the following. First, for marriages concluded
out of community of
property by antenuptial contract prior to 1 November 1984, spouses
have the statutory remedy of s 7(3) of the
Divorce Act 70 of 1979
(which was initially added by s 36(b) of the self-same
Matrimonial
Property Act). This
remedy recognises and entrenches the ‘just
and equitable’ principle and allows a court, on certain
grounds, to order
a redistribution of assets between spouses on
divorce. By contrast, as correctly pointed out by J Sinclair: The Law
of Marriage
(vol 1) p200, this judicial discretion has at the same
time been dispensed with for civil marriages concluded by antenuptial
contract
with the exclusion of the accrual system after 1 November
1984. Second, although the
s 7(3)
remedy is not available to parties
to such a marriage, in Gumede v President of the Republic of South
Africa
2009 (3) SA 152
(CC) at para [44] it was held that it is
effectively available to those who conclude customary law marriages,
irrespective of the
date of such a marriage. Third, the Supreme Court
of Appeal in Butters v Mncora
2012 (4) SA 1
(SCA) recognised that,
even where parties cohabit but never marry, a tacit universal
partnership may be found to exist. Therefore,
a party to such a
relationship could be in a better position than one who has concluded
a civil marriage after 1 November 1984
by antenuptial contract with
the exclusion of the accrual system, as is evidenced by the
authorities referred to below.
[35] The Honey
decision cannot be criticised in the current legislative milieu and
was approved in EA v EC [2012] ZAGPJHC 219 (25
October 2012) at para
[11] within the context of a claim based on a tacit universal
partnership. Similar findings have been made
in JW v CW
2012 (2) SA
529
(NCK) at para [29], cited with approval in Smalberger v Stols
[2012] ZAECPEHC 80 (13 November 2012).
[36] In JW v CW the
court held at para [29] that:
‘The problem
is, however, that the alleged agreement [of a tacit universal
partnership] would in my view have amounted to
a revocation, or at
the very least an amendment, of the very essence of the antenuptial
contract in this case. That could not have
been done, even with “the
mutual consent of the parties” without an order of court.’
[37] The result is
that because the plaintiff: (a) married the defendant; (b) after the
commencement of the Act; (c) out of community
of property by
antenuptial contract with the express exclusion of the accrual
system; and (d) received wrong legal advice about
how to change the
parties’ matrimonial property system pursuant to an express
agreement reached during the marriage, the
current legislative scheme
prevents this court from coming to her assistance. To my mind this
flies in the face of the equality
principle enshrined in s 9 of the
Bill of Rights, and provides a classic example of how a party to a
civil marriage can be unfairly
discriminated against purely on the
arbitrary basis of the date of that marriage. The plaintiff has not
attacked the constitutionality
of the Act, but it seems to me that
legislative reform is required to bring our matrimonial property law
in line with the Constitution.
That having been said, I am left with
no option but to dismiss the plaintiff’s claim on this ground.
The alternative to
the first main claim, i.e. to 50% of the value of the defendant’s
estate
[38] This claim is
premised on the allegation in the plaintiff’s pleadings that in
the June 2004 letter the defendant promised
her one half of the value
of his estate if she resumed the marriage relationship with him,
alternatively that he would share
his estate equally
with the plaintiff, so it would seem, with no strings attached.
[39] There are
various fundamental difficulties with this claim. First, it is not
supported by the content of the June 2004 letter
itself, which makes
it clear that it was rather the defendant’s intention to entice
the plaintiff to return to him with an
offer to change the parties’
matrimonial property system to that of community of property. This is
what the plaintiff accepted.
Second, the claim is not supported by
the plaintiff’s own testimony. While I accept that she had no
assets at the time of
the June 2004 agreement, this does not
translate into an agreement that she would only ever share in the
defendant’s estate,
and that he would never at any stage in the
future share in hers.
[40] Third, even if
one could conceivably stretch the defendant’s offer to the
extent proposed by the plaintiff, he never
offered her value per se,
but rather an effective equal share in assets, and, logic dictates,
liabilities.
[41] It was
submitted on behalf of the plaintiff that there is a difference
between an agreement to change the matrimonial property
regime and an
agreement reached stante matrimonio that one spouse will share in the
assets, or estate, of the other. However, for
the reasons already
given, the plaintiff has failed to prove the existence of any such
agreement; and her claim for 50% of the
value of the defendant’s
estate must thus also fail.
The second claim for
a declaration of the existence of a partnership
[42] This claim is
advanced as an alternative to the first main claim. It is premised on
the allegation that during the marriage
the parties commenced for
their joint benefit a business buying and selling immovable property
and that ‘to facilitate this
[they] entered into a tacit
partnership agreement’. The claim as pleaded was not based on
the June 2004 agreement, although
it was the plaintiff’s
evidence that the property deals embarked upon were in pursuance of
the spirit of that agreement.
This evidence is consistent with the
plaintiff’s failure to distinguish in her testimony between the
June 2004 agreement
and any other agreement which the parties might
separately have reached.
[43] The essential
elements of a partnership are that: (a) each party contributes, or
undertakes to contribute, money, labour or
skill; (b) the business of
the partnership is conducted for their joint benefit; and (c) the
purpose is to make a profit: Butters
at para [11].
[44] The plaintiff,
understandably, relies on a purely commercial partnership or
enterprise. If she had contended that the property
deals formed part
of a universal partnership, she would similarly have been non-suited
by the immutability principle, as was held
in EA v EC, JW v CW and
Smalberger v Stols.
[45] Again, the
plaintiff faces certain fundamental difficulties with this claim.
First, the evidence has established an agreement
concluded during
June 2004 that the parties would henceforth have a joint estate. That
being the case, they would share equally
in the profits and losses of
that ‘estate’. An agreement in these terms is entirely
inconsistent with an alleged later
agreement to form a separate,
stand alone partnership in terms of which profits (and losses) would
be equally shared. Indeed, it
is difficult to understand why, on the
proven facts, the parties would ever have considered it necessary to
conclude such a separate
partnership agreement.
[46] Second, the
plaintiff’s case as pleaded was not supported by her testimony
in a material respect. She had alleged that
the parties contributed
their ‘labour, services and skills’ in equal shares to
the former common home in Skeerpoort
as well, which the defendant had
already acquired in 2002. This was one of the two immovable
properties to which he had referred
in his letter to the plaintiff of
June 2004. The plaintiff had also alleged that the parties expended a
sum of approximately R250
000 on improvements to that property.
However the plaintiff’s evidence revealed that her only
‘contribution’
to the property had been to find a
purchaser when it was sold during 2006 without her taking any
commission. Her evidence was further
that she had only referred to
this property in a schedule produced by her during her testimony
because the defendant had offered
her one half thereof in his letter
of June 2004. Furthermore, the clear tenor of her evidence regarding
the three properties acquired
during 2006 was that they were
purchased pursuant to the June 2004 agreement, and not as a result of
a specific, separate agreement.
[47] Any suggestion
that the agreement to enter into such a partnership constituted a
tacit term of the June 2004 agreement would
be futile. In Nedcor Bank
Ltd v SDR Investment Holdings Co (Pty) Ltd and Others
[2008] ZASCA 11
;
2008 (3) SA 544
(SCA) at para
[12]
it was held that:
‘A tacit term
is an unexpressed provision of the contract which derives from the
common intention of the parties, as inferred
by the Court from the
express terms of the contract and the surrounding circumstances.
[Alfred McAlpine & Son (Pty) Ltd v Transvaal
Provincial
Administration
1974 (3) SA 506
(A) at 531H].
As the inference is
also drawn from the express terms of the agreement between the
parties it is hardly imaginable that a term contrary
to the valid,
express terms would be inferred…’
[48] Put simply, the
plaintiff’s alternative claim based on a tacit partnership
agreement is neither supported by the terms
of the proven agreement
nor by the objective facts, irrespective of whether the equities lie
with the plaintiff. In Northern Estate
and Trust Administrators v
Agricultural and Rural Development Corporation (117/13)
[2013] ZASCA
174
(28 November 2013) it was again stressed at para [13] that in
order to establish a tacit contract it is necessary to show, by a
preponderance of probabilities, unequivocal conduct which is capable
of no other reasonable interpretation than that the parties
intended,
and did in fact, contract on the terms alleged. This the plaintiff
failed to do. It follows that this claim must also
fail.
The third claim for
payment of R135 000
[49] It is not in
dispute that the defendant offered to purchase the plaintiff a
vehicle (one choice being a Toyota RAV) in his
letter of June 2004.
The evidence established that the plaintiff accepted that offer in
addition to the offer to form a joint estate;
and that the defendant
thereafter purchased the Toyota RAV and registered it in the
plaintiff’s name. It is also common cause
that when the
plaintiff sold the vehicle during 2008, at least R135 000 of the sale
proceeds were paid over by her to the defendant.
[50] In his plea in
relation to this claim, the defendant denied that he had made a
donation to the plaintiff which was capable
of acceptance by her.
This stance was neither canvassed nor advanced in any way during the
trial and I accept that it was abandoned.
The defendant rather
adopted the position that, despite the overwhelming evidence to the
contrary, he nonetheless intended retaining
ownership of the vehicle
at all times.
[51] I have already
canvassed the evidence on this aspect and it is not necessary to
repeat it. What should be mentioned however
is the plaintiff’s
evidence that during the four month separation in 2008 she received
no financial assistance from the defendant
(although he claimed to
have settled a debt incurred by her upon her return). The vehicle was
sold during 2008; the plaintiff was
not supported financially by the
defendant for a period of four months thereafter, or at all since
November 2008. The probabilities
are thus that the plaintiff has not
benefitted in any way from the amount of R135 000 paid over by her to
the defendant.
[52] Further, the
defendant never took issue with the plaintiff’s testimony that
the donation of the vehicle was in addition
to the offer about the
formation of a joint estate. As matters transpired the joint estate
was never legally formed. Donations
between parties to a marriage in
community of property are invalid and unenforceable (because property
cannot pass where everything
is owned in common: Boberg’s Law
of Persons and the Family 2nd ed p186). However, donations between
spouses married out of
community of property are indeed valid in
terms of s 22 of the Act. The defendant cannot have it both ways.
[53] I am
accordingly persuaded that the plaintiff is entitled to this leg of
the relief sought by her.
The claim for
nominal or token maintenance
[54] Ss 7 (1) and
(2) of the Divorce Act 70 of 1979 (‘the
Divorce Act&rsquo
;)
provide that:
‘(1) A court
granting a decree of divorce may in accordance with a written
agreement between the parties make an order with
regard to the
division of the assets of the parties or the payment of maintenance
by the one party to the other.
(2) In the absence
of an order made in terms of subsection (1) with regard to the
payment of maintenance by the one party to the
other, 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 break-down of
the marriage, an order in terms of subsection
(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 the one party to the other for any period
until the death or re-marriage of the party
in whose favour the order
is given, whichever event may first occur.’
[S 7(3) is, as
already mentioned, not relevant for present purposes.]
[55] The plaintiff
has assets to the value of R60 000 (a 2000 model Audi motor vehicle
and music equipment) and liabilities of R94
354. It should be noted
that of these liabilities, R54 000 is a loan from her current
boyfriend. There was no indication from the
evidence that the
boyfriend would not at some stage call upon the plaintiff to pay back
this loan. There was furthermore no evidence
as to the permanency of
the plaintiff’s relationship with her current boyfriend,
although the defendant himself volunteered
during his testimony that
the plaintiff has left her current boyfriend once before. On this
basis I accept that the loan of R54
000 should be regarded as a
liability in the plaintiff’s estate. The plaintiff’s
liabilities thus exceed her assets
to the extent of some R34 000.
[56] On the other
hand the defendant is the owner of the Plettenberg Bay property.
According to him, although the property has a
municipal value of R2.5
million it is not worth more than R2 million. He is also the owner of
a motor vehicle with a value of R150
000, furniture and fittings
(which the defendant valued at 1 March 2013 at R180 000) and has
funds in his money market account
of R270 000. His total assets are
thus valued at R2.6 million. His only liability is the amount owing
on the bond registered over
the Plettenberg Bay property of R85 000.
His net estate is thus at least R2 515 000.
[57] The plaintiff
is currently employed as a partner in an estate agency in Knysna. She
earns a monthly salary of R10 000, from
which she pays her own
secretary’s salary of R3 000 per month. In addition she
generates an average monthly income of R3
000 as a vocalist. The
plaintiff also has a potential projected income by way of a share in
the profits earned by the agency of
R15 000 per month. This brings
the total before tax to an amount of R25 000 of which at least R15
000 is uncertain. Her current
monthly expenditure is R10 348, but
excludes a host of items such as provision for retirement, clothing,
comprehensive medical
cover, maintenance or replacement of her
vehicle, entertainment and holidays. It is clear that she lives
frugally and tries to
live within her means. This is in stark
contrast to the lifestyle she enjoyed whilst living with the
defendant. The defendant himself
made mention of this lifestyle on a
few occasions during his evidence.
[58] The defendant’s
income consists of the rental from the self-catering unit which
averages R9 000 per month, as well as
interest on the funds in the
money market account of approximately R300 per month. As previously
mentioned, his testimony was that
his expenses far exceed his income,
although he did not testify about these expenses. His evidence was
however that he is in the
process of securing other homes in the area
to rent on a holiday letting basis at a commission of about 15% of
the rental charged
which, according to him, should provide him with a
decent income.
[59] The plaintiff
accepts that at present the defendant is unable to contribute towards
her maintenance in any meaningful way.
However she contends that,
having regard to the factors in
s 7(2)
of the
Divorce Act, the
defendant should be ordered to pay to her nominal maintenance of R1
per month. This would enable her to approach the maintenance
court if
she is no longer in a position to earn income, or if the defendant’s
financial situation improves. Of course, it
is not only the
defendant’s income which must be taken into account in such an
enquiry, but also his assets.
[60] In Schutte v
Schutte
1986 (1) SA 872
(AD) at 882D-E it was held that a spousal
maintenance order cannot, in terms of
s 7(2)
, be granted after the
dissolution of a marriage. Accordingly, if nominal maintenance is not
awarded to the plaintiff upon the granting
of a decree of divorce,
she will forgo any future claim to such maintenance. In EH v SH
2012
(4) SA 164
at para [11] the Supreme Court of Appeal held that public
policy demands that a person who cohabits with another should not for
that reason alone be barred from claiming maintenance from his or her
spouse, and that each case must be determined on its own
facts.
[61] In Zwiegelaar v
Zwiegelaar
2001 (1) SA 1208
(SCA) it was highlighted that where a
court is satisfied that the one spouse is entitled to maintenance and
the jurisdictional
requirements as laid down in
s 7(2)
have been met,
then it is entitled to make an order which is “just”. In
Buttner v Buttner
2006 (3) SA 23
(SCA), it was stated at para [36]
that
s 7(2)
requires the court to consider the factors listed therein
in order to decide, firstly, whether a need for maintenance 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. It was emphasized that 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
just in light of the
factors set out in
s 7(2).
[62] I have already
dealt with the existing and prospective means of each of the parties,
as well as their respective earning capacities,
financial needs and
obligations. It is clear that the plaintiff has no financial
provision for her retirement. She is almost 45
years old and the
defendant is 55 years old. The parties lived together for most of the
first ten years of their marriage and have
been separated for the
past 5 ½ years. Their standard of living during the marriage
is highlighted by the contents of the
defendant’s own letter of
June 2004. Although they cannot be described as wealthy, the parties
certainly had an above average
lifestyle, which included both a home
and a holiday home in a sought after area, the stabling of horses and
overseas trips. The
defendant’s conduct during the marriage was
at times reprehensible. The parties’ failure to invoke the
remedy provided
in s 21(1) of the Act, for reasons that cannot be
laid at the door of the plaintiff, has resulted in severe prejudice
to her. There
was never a suggestion that the plaintiff had acted in
anything but good faith in resuming the marriage relationship in June
2004
on the strength of the promises and undertakings made to her by
the defendant. To my mind, it would be grossly unjust to refuse
the
plaintiff token maintenance in these circumstances, and this claim
must thus succeed.
Costs
[63]
S 10
of the
Divorce Act provides
that:
‘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.’
[64] Although the
plaintiff has only been partially successful in her claims, the other
side of the coin is that the defendant has
throughout this litigation
adopted the attitude that the plaintiff is entitled to nothing at
all. Much of the evidence led in respect
of the unsuccessful claims
was in any event relevant to those in which the plaintiff has
succeeded. The award of nominal maintenance
in her favour is a
significant one. There is no doubt that the plaintiff would have
walked away from this marriage with nothing
had she not pursued this
litigation. Having regard to the aforegoing, as well as all of the
circumstances of this case, in the
exercise of my discretion I
consider it just that the defendant must bear the costs of this
action.
Conclusion
[65] In the result
the following orders are made:
1. A decree of
divorce is granted.
2. The defendant
shall pay to the plaintiff the sum of R135 000 (one hundred and
thirty-five thousand rands) together with interest
thereon a tempore
morae from date of service of the summons herein (i.e. 22 May 2009)
until date of payment.
3. The defendant
shall effect payment of maintenance in respect of the plaintiff
personally in the sum of R1 (one rand) per month
until her death or
remarriage, whichever occurs first. To the extent that it may be
considered necessary, the plaintiff is granted
leave to approach a
court of competent jurisdiction for an increase in such maintenance
on good cause shown.
4. The balance of
the plaintiff’s claims are dismissed.
5. The defendant
shall effect payment of the plaintiff’s costs in these
proceedings on the scale as between party and party
as taxed or
agreed, save for any prior costs orders which the plaintiff has been
ordered to pay, and the defendant shall also bear
the travel and
accommodation costs of the plaintiff’s counsel for attending
the trial in Cape Town during March 2014.
J I CLOETE