IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)

					      	CASE NO: 2005/25726

In the matter between:		
BOTHA, DEREK	Plaintiff	
and		
BOTHA, THERESA MARY	Defendant	

JUDGMENT 

SATCHWELL J:

INTRODUCTION

1.	This is a divorce action in which both Plaintiff (Mr. Botha) and Defendant (Mrs. Botha) have claimed dissolution of the marriage. At issue is the interpretation and application of Section 7(2) of the Divorce Act which confers a discretion upon the court to make a maintenance order in favour of one spouse against the other.  

2.	 Two opposing approaches have been argued:  on the one hand  that maintenance is automatically to be paid to a poorer spouse by reason solely of the prior existence of the marriage and financial inequality between the parties;   on the other hand that  maintenance  is a discretionary award in respect of which the court must first ascertain whether or not maintenance should be granted before enquiring into the quantum and duration thereof.

3.	This judgment  confirms that,  taking into account so-called ‘clean break’  and Constitutional principles,  there is no automatic right to maintenance after divorce.   Entitlement to maintenance must first be shown before a court determines the quantum and duration thereof.  In the present case the independent  lives established by the parties into middle age;   the duration of the marriage;   the employment of the claimant prior to, during and after the marriage;  the claimants responsibilities for an adult  daughter  combined with  their refusal to seek any assistance from the co-parent of that daughter ;   the absence of supporting evidence as to the costs of  the  marital lifestyle established  and enjoyed by cohabiting parties;   the extravagance  of the lifestyle established by the claimant after she and her spouse had separated;    the unreliability of the  amounts claimed  to support this independent lifestyle  as well as  the  purpose for which  they were claimed;  the inclusion of the claimants adult  daughter   in the claim for maintenance for the remainder of claimants lifetime are amongst the factors taken into account in assessing the claim for maintenance.    The purpose of  short-term or ‘rehabilitative’ maintenance is also considered. 

4.	Both parties have testified. Neither has really relied upon conduct of the other party which is of such an abominable nature that it deserves mention. I am satisfied that the marriage relationship between them has irretrievably broken down and that a decree of divorce should be granted.

5.	Mrs. Botha has claimed maintenance from her husband. Initially, in her  counterclaim,  she claimed  payment of maintenance  for life in the amount of  R30 000 per month.   In her further particulars for purposes of trial she abandoned that claim and gave notice that she now pursued a claim for permanent maintenance of R20 000 per month plus payment of all medical expenses.   No  formal notice of amendment was ever given nor moved;   Finally, on  conclusion of  trial,   her legal representative submitted that it would be appropriate for her to receive  rehabilitative maintenance in the amount of   R 20 000 per month  for a period of five years.

6.	By reason of these differing maintenance claims – both permanent and of limited duration - it will be necessary for this judgment to consider the different approaches to be taken and the different considerations applicable to such various awards. 

7.	I have been addressed by Mr. Botha’s counsel on the need for and absence of compliance with the Rules of Court.  Firstly, Mrs. Botha claimed one amount as permanent maintenance and then, without formal notice or amendment of her counterclaim, simply proceeded to trial in a different quantum. Secondly,    Mrs. Botha claimed only permanent maintenance the first time; rehabilitative maintenance was mentioned in argument at the end of the trial.  It was argued that Mr.  Botha had only to meet the case as pleaded by Mrs. Botha and that he could not be expected to address in his evidence the issues necessarily ensuing from a rehabilitative maintenance claim of which he had no knowledge and in respect of which Mrs. Botha had herself given no evidence.

8.	Of course these complaints have  merit. I appreciate that Mr. Botha should not be prejudiced by the failure of Mrs. Botha to file appropriate pleadings or to lead evidence on her ultimate claim. I do, however, believe that a court should be astute to make every attempt to ensure that the issues essential for a ‘just’ decision are properly ventilated and considered in matrimonial matters which involve highly personal, emotional and intimate issues. Pleadings can be amended at the latest stage where prejudice can be avoided.

9.	I do not consider the absence of the usual catch-all prayer for “further or alternative relief” to be a fatal bar to Mrs. Botha at least now seeking the relief she now claims.

FACTUAL BACKGROUND

10.	Mrs. Botha was 39 years of age and mother of a thirteen year old child when she married the plaintiff on 18 December 1999. She held a Certificate in Industrial Relations from Rand Afrikaans University and  was then employed  at South African Federated Engineering Contractors (SAFCEC) where, she  testified, she was earning in the region of R7 000  to  R8 000 per month.  Mrs. Botha and her daughter lived in rented accommodation in Bezuidenhout Valley.

11.	Mrs. Botha has always been and remains the sole support of her daughter, having chosen to have nothing to do with and having  sought no assistance from the father of her child for her daughter’s support. She testified that neither she nor her daughter wished to have any contact with her daughter’s father.

12.	Mr. Botha was 50 years of age and the father of a son living in the United States of America when he married the defendant. He was qualified as an engineer and employed as a ‘business developer’ with African Producers (Pty) Ltd., a division of the Tongaat Hulett Group at the time of the marriage where he remains employed today.  He lived in his own home in River Club where he still resides. 

13.	The marriage is out of community of property. The parties entered into an Ante Nuptial Contract on 16 December 1999 which provided for the patrimonial consequences of the marriage to be out of community of property and of profit and loss and with the exclusion of the accrual system. Specific provision was made therein for transfer of the sum of R20 000 from Mr. Botha to Mrs. Botha upon divorce, Mrs. Botha testifying that this was intended to compensate her for loss of furniture which she disposed of at the time she married Mr. Botha and she and her daughter moved into his house.

14.	On the marriage both Mrs. Botha and her daughter into Mr. Botha’s house.

15.	According to Mrs. Botha, Mr. Botha paid for the house expenses, household maintenance, most of the household groceries, and medical expenses. Mr. Botha’s documentation on expenditure confirms his financial responsibility for house expenses such as rates, electricity, water and services, television, staff salaries, holidays, telephone costs and so on. 

16.	Mrs. Botha’s testimony was that her standard of living improved by reason of and during the marriage. They moved from rented accommodation to Mr. Botha’s own property which had four bedrooms, a swimming pool and security.  Her daughter, of whom she is the sole support, had the benefit of Mr. Botha’s accommodation. Mr. Botha paid both her and her daughter’s medical expenses. She was obviously relieved of much of the burden of the costs of providing for herself and her daughter. Furthermore, Mr. Botha paid for all holidays which were ‘mainly camping’.

17.	Mrs. Botha continued in her employment after the marriage. 

18.	However, on an unknown date during the marriage (“about 2002/2003”) Mrs. Botha resigned her employment with SAFCEC. Her decision was taken with the knowledge of Mr. Botha. Mr. Botha was not challenged on his evidence that he thought that her reason for resignation was that she “was not that happy” and that the severance package she received was “attractive”. 

19.	Mrs. Botha was paid out just over R300 000 in retirement/severance benefits. She testified that she first received the sum of R90 000 in cash which she expended on her own and her daughter’s needs.   At the same time the sum of approximately R140 000 was invested with Investec where it still remains invested. In March of 2008 Mrs. Botha received  final payment of R76 000 which she has used, in part, to purchase a motor vehicle for her daughter.

20.	After some eighteen months not working, Mrs. Botha again sought employment. She commenced working with the employers’ organisation SEIFSA as an association administrator where she continues to work to this day. She earns a basic gross salary of R16 380 per month (including car allowance) which results in a nett salary of R11 873.52 plus one guaranteed bonus of a month’s salary payable in December of each year plus a discretionary bonus payable in about October each year.  Although no details were given of her responsibilities, Mrs. Botha testified that she works closely and frequently with the public, requiring specific clothing for this purpose and a vehicle appropriately maintained and presented. 

21.	Mrs. Botha is presently registered for a management development programme through UNISA which she described as “one year below an MBA”. This  course is paid for by her employers.   She does not expect that it will  lead to any opportunities with her present employers– neither promotion nor salary increases.   Shehave any expectations that “doors will open”  in any of the fields of her study since her experience is in the field of Industrial Relations.

22.	During the marriage Mrs. Botha received some R20 000 to R30 000 from the deceased estate of her mother which she expended on miscellaneous items including a cellphone for herself and Mr. Botha as well as her daughter’s school fees.

23.	After a few years of marriage the relationship deteriorated. The parties remained living in the same house but sharing neither a bed nor a common life. There was counselling. In October 2005 Mr. Botha issued a summons seeking a divorce.   

24.	 Defendant and her daughter moved out of plaintiff’s home in June 2006.

25.	On 30th May 2006  Mrs. Botha was granted an interim order in terms of Rule 43 granting her maintenance in an amount of R15 000 per month plus payment of her medical expenses. That order continues to this day.

APPROACH

26.	Mr. van Huyssteen, appearing for Mrs. Botha, argued that the reciprocal duty of support owed by spouses to each other survives the marriage and accordingly that Mrs. Botha  is  entitled to maintenance as of right by reason of her marriage to Mr. Botha as well as the standard of living established thereby and her inability to alone meet her (and her daughter’s) living expenses to the same standard established during the marriage.

27.	He went on to submit that what is needed is a balancing procedure which is designed to enable both parties to sustain a standard of living commensurate with the standard of living that the parties enjoyed during the marriage. He appeared to take the view that no more than financial need on the part of Mrs. Botha and ability to pay on the part of Mr. Botha need be established for the court to make a maintenance order in her favour. 

28.	With these propositions I cannot agree. 

Post Divorce Maintenance is Discretion Not a Right

29.	It is an accepted principle of South African law that neither spouse has a right to maintenance upon divorce. See Strauss v Strauss 1974(3) SA 79 (A).  

30.	 The payment of maintenance to a spouse upon divorce is the creation of statute. The Matrimonial Affairs Act 37 of 1953 permitted a court to make an award against the guilty spouse for the maintenance of an innocent spouse. The current Divorce Act of 1979 permits a court to make an award which it finds “just” for maintenance by one party of the other party.

31.	The 1953 legislation  has been  interpreted to mean that no entitlement to claim maintenance as of right had been given to the innocent spouse but that “the Court was given a general discretion” (Lincesso v Lincesso 1966 (1) SA 747 (W);  Grgin v Grgin 1960 (1) SA 824 (W);  Van Wyk v Van Wyk  1954 (4) SA 595 (W);  Hossack v Hossack  1956 (3) SA 159 (W) and Portinho v Porthino 1981 (2) SA 595 (T).)       

32.	The 1979 Divorce Act does not explicitly set out any right to maintenance by reason of the marriage now sought to be dissolved. The Act does not explicitly proclaim that maintenance in any amount or for any period will be ordered by reason  solely of the marriage and the inability of one party to maintain the standard of living to which she has become accustomed during the marriage. The language of section 7(2) is clearly discretionary. The use of the word “may” allows for a positive exercise of the judicial discretion to grant maintenance and equally allows for a negative exercise of the judicial discretion to not grant maintenance. The wording of Section 7(2) of the 1979 Divorce Act confirms, in its use of the discretionary “may”, that the position has not changed the common law. With respect, I am in agreement with what was said by the court in Portinho supra “The Court has discretion, the plaintiff has no right”. (597B).   

33.	Accordingly, the submission made in argument on behalf of Mrs. Botha that “when one becomes married one binds oneself for rest of one’s life” is not supported by the authorities.

The ‘Clean Break’ and Constitutional Principles 

34.	It was suggested by Mrs. Botha’s legal representative that there has been a ‘paradigm shift’ in the approach to spousal support in recent years. No authorities were relied upon to motivate the suggestion that the common law is no longer applicable or that the ratio set out in Portinho supra should no longer be applied. 

35.	I bear in mind that this last (or most recent) authoritative statement that a spouse has no “right” to maintenance upon divorce  was set out in Portinho supra in 1981 and that a court should be careful to ascertain whether earlier principles of law  are  congruent with 1996 Constitutional principles as also current  general approaches to matrimonial and divorce disputes.

36.	Much has been written and said regarding the so-called “clean break” principle which proposes that divorcing parties should become economically independent of each other as soon as possible after a divorce. This mutual independence is sometimes achieved through the redistributive mechanism  provided for in Section 7(3) of the Divorce Act or by an order that there be payment of a lump sum amount of money or transfer of one or more assets in lieu of maintenance or by implementation of a programme of ‘rehabilitation’  subsidised by maintenance for that purpose. These principles and mechanisms were known at the time that Portinho supra was handed down.

37.	Further, the Constitutional dispensation against which we must measure the impact of all court orders, affirms principles of human dignity, the achievement of equality and non-sexism. The common law position enunciated (for instance in Portinho supra) is not inimical to these founding principles. The rights to equality (section 9) and human dignity (section 10) are not abridged by application of either the common law or section 7(2) of the Divorce Act. It has not been suggested that the law as it reads would amount to unfair discrimination against Mrs. Botha on account of her gender or age.

38.	Indeed, it would seem to me that the very factors to which a court shall or may have regard in making a section 7(2) determination would require a court to ensure no ‘unjust’  results  frowned upon or prohibited by the Constitution eventuate.

39.	I am mindful that our courts may have been quick to proclaim the need for  former spouses to be financially independent of each other whilst not always fully cognisant of the many  experiential barriers and familial responsibilities  which render such security no more than a chimera for many women.  However, substantive equality has not necessarily followed upon theoretical equality.     In the present case,  gendered inequality following upon child-rearing obligations,  is not in issue.

40.	Accordingly, I cannot see that any paradigm shift which may have taken place  in legal principles and social realities since the decision in Portinho supra in 1981 renders the enunciation of our common law contained therein any less applicable to the present time. In the result Mrs. Botha did not, by reason only of her marriage to Mr. Botha in 1999 acquire an entitlement or right to maintenance from Mr. Botha which she could automatically exercise on physical separation in January 2005, when summons was issued in December 2005, on residential separation in June 2006 or on divorce in May 2008.

41.	I am in agreement with Advocate Smit, appearing for Mr.  Botha, that Mrs. Botha must have a cause of action, in  that she must found a claim for maintenance. 

THE JURISDICTIONAL REQUIREMENTS OF SECTION 7(2) 

“Just”

42.	In exercising its wide discretion, a divorce court may or may not make an order   granting maintenance.  Where maintenance is granted this may be for “any period” whether a specified period of time or until the happening of an event.

43.	The purpose of the court’s enquiry in terms of section 7(2) is to determine what award would be ‘just’. The enquiry is necessarily directed towards the interests of both spouses and the impact which the order will have on each.   Justice must therefore be measured as between Mr. and Mrs. Botha.

44.	Few reported judgments on application of the Divorce Act have addressed themselves to the meaning to be given to the goal of achieving what is “just”.   In  Zwiegelaar v Zwiegelaar 2001 (1) SA 1208 (SCA) the court commented that it would be just to recognise accommodation requirements as part of maintenance needs while Buttner v Buttner 2006 (3) SA 23 (SCA)  stated that  the court is enjoined to “effect justice as between the parties” [para 24].

45.	What is ‘just’  has been  considered in the context of insolvency and liquidation. In  Pienaar v Thusano Foundation and Another 1992 (2) SA 552 (B) at 580D-F, Friedman JP said the following:

   By their very nature the words 'just and equitable' are incapable of an all-embracing and exhaustive definition, and it is not surprising that the Courts have been unable to define them in an all-encompassing manner.
In its plain, grammatical meaning, "just" means inter alia correct, appropriate, fair-minded, sound, deserved, fitting, reasonable, justified and "equitable" means inter alia even-handed, fair, honest, reasonable, right. 
    This in effect connotes and signifies that, if the Court, in exercising its discretion judicially, comes to the conclusion that it is correct and appropriate and fair and reasonable to wind up a company, it will do so. 
    To put it another way, in its process of reasoning, the Court is guided by "broad conclusions of law, justice and equity", and in doing so it must take into account competing interests and determine them on the basis of a judicial discretion of which "justice and equity" are an integral part. The Court has to balance the respective interests and tensions and counterbalance the competing forces and resolve and determine them in a fair, proper and reasonable manner.' 

46.	What is thought to be a ‘just’ order in the context of the Divorce Act must  contain a moral component of what is thought to be ‘right’ and ‘fair’.    Fairness envisages that the order is ‘appropriate’ as between the parties and when measured against all the factors specified in section 7(2) and those others which a court decides should also be taken into account. What is ‘appropriate’ brings one back full circle to the moral consideration that the order must be ‘deserved’. Of course any ‘just’ order’ must be ‘well founded’ on fact and   reflect   relevant and proper legal principles.

47.	The considerations to which a court must have regard as specified in section 7(2) as well as “any other factor” encompass the enquiries as to whether or not an award of maintenance should be granted and, if so, in what amount, for what period and on any conditions. There is obviously much overlap in the import of these considerations. Most of the specified factors seem to guide the court as to both entitlement to and quantum of maintenance. 

48.	However, I see no merit at all in the approach of Mrs. Botha’s legal representative that it is sufficient for Mrs. Botha to establish that her current earnings do not permit her (and her daughter) to maintain the lifestyle which they enjoyed during the period she was married to and living with Mr. Botha in his home and that he is financially able to maintain her to that standard.

49.	Such an approach is not consistent with the wording of section 7(2) which requires consideration of a multiplicity of identified factors which iare not a numerus clausus. One is required to go further than ‘financial needs’ and “existing means” and ‘earning capacities’. Furthermore, such an approach would hardly conduce towards justice because it would simply amount to a statement of “I need and you can pay”.

Life Before Marriage

50.	Mrs. Botha told the court she had chosen not to become married before her 1999 marriage to Mr. Botha.     

51.	She had embarked upon adult life as an autonomous and self directed woman.   She was an adult woman of 39 whose life choices and experiences had already determined most of life’s opportunities, enjoyments and difficulties. She had a qualification which she used to support herself. She was continuously employed. She lived off her earnings. Any other sources of income did not include a husband.     

52.	Mrs. Botha did not merely have a job. She had a career. She told the court that her working experience was in the Non-Governmental Organisation sector and she made it clear that she perceived the situation of her employment to be important to her. She expressly stated that her attitude was not simply to extract as much money from her employers as possible

53.	She was, for some thirteen or fourteen years before she married Mr. Botha, the single parent of her daughter. It was her choice to bring her daughter up without any financial assistance from the father of her child.

54.	There were no details of Mrs. Botha’s lifestyle prior to her marriage to Mr Botha. This court knows that, in 1999, she was living in rented accommodation. The suburb in which she was then living was then an old and established middle class area. 

The Marriage

55.	Both Mr. and Mrs. Botha appear to have entered into the marriage with their eyes wide open. Their ante-nuptial contract provides for separate estates.    Mrs. Botha did not contract to share any post marriage increases in Mr. Botha’s   estate. She did, however, specifically provide for payment of the sum of R 20 000 or its equivalent as reimbursement for furniture disposed of.

56.	Mrs. Botha did not come alone into the marriage. However, Mr. Botha did not adopt her teenage daughter. He may have provided her with a home and essentials of life but this was, as her attorney submitted, because she ‘was part of the package’. Mr. Botha did make certain ad hoc payments towards his stepdaughter’s expenses but there is no indication that this was done as a matter of course. 

57.	Mrs. Botha did not stop working upon marriage. She continued in the same position with her same employer. This evidence strongly suggests that she expected to be and was expected to be supporting both herself and her daughter. There is no evidence that Mrs. Botha was, by reason of the marriage, unable to work the same hours or carry out the same responsibilities. She gave no detail of this employment at all. However, it is clear that Mrs. Botha still utilised her private funds for herself and her daughter.

58.	At some point in the marriage, Mrs. Botha resigned her job. This was the evidence of both Mr. and Mrs. Botha. It is clear that Mr. Botha knew in advance of her decision. There is no evidence that there were disagreements as to her proposed course of action. The evidence of Mr. Botha that this was Mrs. Botha’s decision was not disputed.

59.	For a period of some eighteen months Mrs. Botha did not work. She then returned to working life with a new employer- SEIFSA – with whom she continues to be employed. There was no evidence as to the reasons for taking up this employment or the ease or difficulty with which it was obtained. The date when she commenced employment is undisclosed. However, it is apparent from the Rule 43 application brought by Mrs. Botha that she was, at the very least, in her current employment as at March 2006.

60.	It is relevant that no children were born of this marriage.

61.	Fault plays no part in the breakdown of this marriage. There is no evidence from either party that the conduct of either is so heartless or cruel or blameworthy that any penalty consideration should apply to the consideration of maintenance. Mrs. Botha complained that Mr. Botha was ‘stingy’,    ‘secretive’, made derogatory remarks to her concerning her physical appearance and was ‘belittling’. Mr. Botha testified that theirs was a “dysfunctional relationship” and he felt that he was on the receiving end of Mrs. Botha’s passion and anger to an extent he could not endure.  

62.	The evidence was that they both attended some 25 sessions with a psychologist which did not assist the relationship. 

Standard of Living During the Marriage

63.	It is Mrs. Botha’s undisputed evidence that her standard of living altered for the better by reason of her marriage to Mr. Botha. 

64.	She moved from rented accommodation without certain facilities to his home with pool and security. She lived in a more upmarket area of Johannesburg.    He paid all expenses associated with provision of this home thereby relieving her of some of the expenses which she had previously met for herself and her daughter. He covered most of the grocery and daily living expenses. He met holiday expenses. She now had to utilise her earnings only for her and her daughter’s personal expenses such as clothing, cosmetics, transport, education and some groceries. Mr. Botha also made some ad hoc payments for the benefit of Mrs. Botha (such as car repairs) and for her daughter (such as university fees).
    
65.	In addition, Mrs. Botha, believing that this marriage would be ‘forever’, had the consolation and security of her expectations in sharing in Mr. Botha’s savings and pension arrangements. 

66.	Mrs. Botha testified to Mr. Botha’s ‘stinginess’ and that he was ‘secretive’ whilst he gave evidence that Mrs. Botha was careless as to the cost of household expenditure. Whatever their disagreements, it was not in dispute that Mrs. Botha did enjoy an improved standard of living though there is nothing to suggest that  it was, in any way, luxurious.

67.	At the very least Mrs. Botha was sharing household expenses which she had previously borne alone and had the security of a husband who was in employment.

Financial Means and Capacities 

68.	It is common cause that Mr.  Botha prior to, during and after the marriage has and will earn more than Mrs.  Botha both by way of salary, bonuses and share options. As at March 2008 he earned a gross salary of R54 050 reducing to a nett salary of R39 514.80. In October 2007 he was awarded a bonus in the gross amount of R223 480 of which he received a nett R134 088. He contributes to a pension scheme. 

69.	It was argued that Mr. Botha had, over a period of time, not placed in issue his ability to pay maintenance. However, it was apparent from the  pleadings and correspondence that  all such references were carefully  qualified to the effect that he was able to meet “reasonable rehabilitative maintenance, if any” and  “reasonable maintenance”. Mr. Botha gave evidence that he believed that, in any event, his ability now to pay had been compromised by the payment of almost R400 000 in interim maintenance pursuant to the court order of May 2006.

70.	Mr. Botha was a qualified engineer at time of the marriage and remains in the same area of employment. He will retire in this position. He is now aged 59. Mr. Botha owned his home prior to the marriage. He owns two vehicles.    It was not in dispute that Mr. Botha has acquired an investment portfolio partially through savings and partially through share options from his employment.       

71.	Mrs. Botha had a university diploma at time of the marriage and is now studying for a further university qualification. She is employed as an association administrator. She is 47 years old. 

72.	Mrs. Botha earned an undisclosed amount in the region of R 7–8 000 prior to the marriage. She contributed to a pension scheme for which she was partially paid out when she resigned. A portion of those funds are  invested. Portion she has not yet expended. She now earns a gross salary of R16 380 per month (including car allowance) which results in a nett salary of R11 873.52 plus one guaranteed bonus of a month’s salary payable in December of each year plus a further discretionary bonus payable in about October each year. She contributes to a pension scheme.

73.	Some reference was made to Mrs. Botha’s ill health which results in her taking anti-depressants, a digestive problem resulting from a hiatus hernia, a damaged ankle and hand. There is no evidence that these complains have had any impact whatsoever on her ability to earn a living.

74.	Mrs. Botha testified that she does not expect to be promoted or earn a higher salary at SEIFSA on achieving this new qualification since there would be no available positions and because she “can’t milk [the company] for my personal benefit”. However, she has “no intention” of leaving the company which she described as “supportive” or of seeking employment elsewhere at a higher salary because inter alia she enjoys what she does and is “a committed employee”. She has not made any enquiries about positions at a higher salary elsewhere either at the present time or on completion of her studies.

75.	Mrs. Botha has never owned her own home and has no expectation of being in a financial position so to do. Portion of her retirement/severance payout was (presumably compulsorily) invested with Investec. The balance was spent.  She owns two vehicles– one of which she has very recently purchased for her daughter. 

Mrs Botha’s Major Daughter  

76.	Mrs. Botha’s daughter is now 23 or 24 years old. She completed matriculation in 2003. She is now a fulltime student at the University of the Witwatersrand where she is studying Fine Arts. She  failed some subjects and left university and worked for a year before returning.  

77.	 No contribution has been sought from her father to her support. 

78.	She has not sought a study loan or any external assistance with her living or educational expenses. Indeed Mrs. Botha seemed very taken aback when this was even put to her. She appears to have no meaningful part-time employment. Mrs. Botha explained that her daughter had failed a year and it was now essential that she focus on her studies. There was also, she said, a lot of work at university. Her daughter could not hold down a part time job at night because she had neither a drivers licence nor transport but this was somewhat belied by the evidence that the daughter spends every Saturday night with her boyfriend. 

79.	From September 2006 Mrs. Botha paid the rental on separate accommodation for her daughter – it was only in  February of 2008 that her daughter moved in to share the townhouse with her. Household and other expenses are thus now combined. Mrs. Botha also meets her daughter’s other expenses ranging from cosmetics and clothing to university fees and electronic equipment.

80.	When questioned on her calculations as to her monthly expenses which require contribution from Mr. Botha, Mrs. Botha conceded that these expenses included all her daughter’s expenses. In fact their expenses appeared inextricably interwoven.

81.	It was submitted that the financial obligations to be taken into account by this court include the duty of Mrs. Botha to support her daughter. It was argued this duty of support compromises the available funds which Mrs. Botha has to meet her own needs and to support herself. Finally it was suggested that Mr. Botha accepted Mrs. Botha’s daughter and her need for support as part of the ‘package’ when they married.

82.	I was referred to the judgment of Heystek v Heystek 2002 (2) SA 754 (T).    The facts of that matter provide no assistance to Mrs. Botha. In that case the court was concerned with an interim order for maintenance pending the outcome of divorce litigation and the consequence that such maintenance would inevitably assist with the support of stepchildren. In the present instance, Mrs. Botha’s daughter has already had the benefit of two years of interim maintenance pursuant to the Rule 43 order of   May 2006. Where the court expressed the need to be mindful of the rights of children, the court was, of course, dealing with ‘children’ as defined. Mrs. Botha’s daughter is twenty three years old, left school in 2003, has worked and had a number of years fulltime at university. 

83.	The nature of and extent of the expenditure on Mrs. Botha’s daughter is a cause for some concern  and  is an issue to which I must return when  dealing with Mrs. Botha’s alleged or claimed monthly needs and expenses. For instance, careful scrutiny of the various invoices and receipts attached to Mrs. Botha’s own expenses indicate that she has purchased two cellphones, an IPOD and an MP3 player for her daughter in the two years Mr. Botha has been paying interim maintenance of R15 000 per month to Mrs. Botha. Further scrutiny indicated that at least one of these items had been claimed as being incurred under the heading of another. For instance, after receiving the most recent retirement payment of R74 000 in March 2008, Mrs. Botha did not invest same for her retirement but purchased a motor vehicle for her daughter in the sum of R50 000 – although her daughter has no driving licence. It is difficult not to be somewhat surprised that Mrs. Botha should elect to spend money on her daughter in the manner and to the extent she has done over the past few years when she claims to be in such a parlous financial position.

84.	It is even more difficult to expect Mr. Botha to be reconciled to contributing to the support of Mrs. Botha’s daughter who is not his own, whom he has not adopted, who is a major of 23 years old and in respect of whose lifestyle and expenses he has no persuasive influence let alone control. While Mrs. Botha is entitled to make whatever parenting choices she may wish for her daughter, she cannot expect these to be inflicted on Mr. Botha.

85.	Finally, I was provided with no evidence to indicate which expenditure was in respect of the daughter and which in respect of Mrs Botha and I am therefore in no position to decide (even if I thought it ‘just’) which portion of these expenses should be covered by maintenance or for how long. It seems that Mrs. Botha intends Mr. Botha’s contribution towards expenses of Mrs. Botha’s daughter to be subsidised by him indefinitely and well beyond her studenthood.

 Mrs Botha’s Financial Needs and Obligations

86.	Mrs. Botha prepared a schedule of what she alleged were her monthly expenditures apparently based upon and supposedly supported by a multitude of cash slips or other documentation.

87.	The first immediate difficulty was that the schedule of expenditure was no more than a summary of the means whereby expenditure was made. In the main the bulk of expenditure was simply identified by cash payments and failed to identify the expenses by content or purpose. To identify expenditure by reference to source of funds (e.g. cash) or creditor (e.g. credit card) does not assist the court to understand the context of such expenditure nor to usefully  assess the expenses incurred as required by the provisions of section 7(2) of the Divorce Act.

88.	The second difficulty emerged from the thoroughly prepared cross-examination of Advocate Smit who appeared for Mr. Botha. It is impossible for this court to rely upon the credibility of Mrs. Botha as to her expenditure.       Careful perusal of a number of vouchers indicated that timed purchases had been made within only a few minutes on the same date at stores in suburbs or malls at some considerable distance from each other. The court did not need to go on an inspection in loco to know that it was simply not possible for one person to have made a timed cash purchase in one mall or suburb and then   leave the store, leave the mall, pay for parking, find one’s car and leave the parking area, drive through the Johannesburg traffic, arrive at the next shopping site and find parking, makes one’s way through the next shop and  find an item, queue and make another timed payment and then repeat the entire exercise- all within minutes. I cannot accept that these vouchers honestly and correctly reflect the expenditure incurred solely by Mrs. Botha for herself (or even for her daughter) on those days and times and in those amounts and for those items.

89.	The third difficulty is one to which I have already referred.  That is the interwoven nature of expenditure for Mrs. Botha and for her daughter. In some cases Mrs. Botha claimed expenses as her own, such as art supplies, which were more than likely for her daughter. 

90.	The next difficulty is the nature and quantum of expenditure.  It is understood that all such applications would have their extravagances or unnecessary or unreasonable items. But the claims made in this case indicate extravagance across the board. Alcohol, cosmetics, mineral water, herbal remedies and dietary supplements, car washes, manicures, takeaways and eating out for two or more persons.

91.	At the end of the day, I am in no position to extract mother from daughter, truth from untruth, extravagance from necessity or even category of expense from cash payments. 

92.	Mrs. Botha’s legal representative sought to overcome these obvious difficulties by submitting that, notwithstanding any deficiencies in her calculations and although her calculations as to her monthly needs could be somewhat reduced, the most basic and uncontroversial of her monthly expenses consumed the bulk of her earnings.  This left her with insufficient funds to meet other reasonable expenses.   

93.	The difficulty with this argument is that I am still left in the dark as to the quantum of reasonable expenses which Mrs. Botha is unable to meet and in respect of which she seeks maintenance from Mr. Botha. I cannot simply guess an amount based on no credible information or evidence which has not been led.

94.	Further, no basis has been given why any ‘token’ award of maintenance should be made.

The Standard of Living During the Rule 43 Order 

95.	There was little evidence as to the standard of living of Mr. and Mrs. Botha during the marriage save for that which I have already set out. Where Mrs. Botha presented detailed information it pertained to her alleged expenditure during the period of their separation and subsequent to the Rule 43 Order for interim maintenance of May 2006.

96.	In a sense this court has been presented with a ‘standard of living’ developed by Mrs. Botha subsequent to her separation from Mr. Botha and while living independently from him. This lifestyle reflects her access to her earned income and Mr. Botha’s interim maintenance payments since May 2006. 

97.	The overwhelming impression of Mrs. Botha’s evidence was that she perceived the Rule 43 Order and the funds thereafter available as giving her licence to spend without regard for any economies whatsoever. She was now in receipt of funds which doubled her income and she spent as though there was no tomorrow. There is, in her itemised expenditure, a recklessness which borders on the contemptuous.    

98.	There is no attempt at economy or parsimony. Mrs. Botha justifies regular payments for car washes on the grounds that she liaises with the public and that she does not have facilities at home.  She continues to pay bank fees on bank accounts which she does not use and cannot be bothered to close.  Documentation discloses regular and substantial purchases of alcohol which Mrs. Botha explains this is something which she enjoys and that she is in charge of the ‘birthday club’ at her employment. She concedes she herself drinks just short of a bottle of wine each night. Cashmere clothing and French manicure gel nails are included in her expenditure. She justifies the purchase of mineral water because she “doesn’t drink plain water”. Many, many magazines are purchased each month. Meals eaten out or taken away or consumed as snacks are recorded on the documents and usually for two or more people. This was explained by Mrs. Botha as purchases for colleagues and friends. She could not substantiate an additional amount in respect of entertainment claimed each month of which there is no documentation as to content but justified on the grounds that “I lead a very active social life” and “Why Not?”

99.	There is no indication that Mrs. Botha realised that the Rule 43 Order was an interim situation which may not be repeated once the divorce was granted and that she should try to cut her cloth to suit a more realistic situation. She paid two rentals – one for herself and one for her daughter – in a very upmarket suburb. She did not consolidate expenditure from the beginning. The choice of accommodation was made so as to be closer to her daughter instead of seeking lesser rentals in less expensive suburbs.  The absence of care with expenditure was revealed in court when it emerged that an item claimed as an expense had actually been paid so long that the expense was no longer extant and the account was not in credit balance and the maintenance was being used for a form of saving.

100.	The purpose of interim maintenance appears to be entirely disregarded by Mrs. Botha. It is intended to supplement expenses which she cannot meet and not to establish a lifestyle which neither she nor her daughter had previously enjoyed. All expenses claimed include Mrs. Botha’s daughter– from her clothes to her groceries. In addition there were art materials which Mrs. Botha attempted to claim as her own. Within a year Mrs. Botha purchased two cellphones for her daughter – it was important to purchase the more expensive since the cheaper was without certain facilities her daughter wanted. An IPOD was purchased for the daughter and a MP3 player– two expensive electronic sources of music. All this while, to add insult to injury, medical expenses incurred for and on behalf of this daughter were sent to Mr. Botha who was under no obligation to pay same. Mrs. Botha’s daughter has a father– he is in his sixties and retired.  No maintenance is sought from him but instead  from Mr. Botha who is 59 and soon to be in his sixties and retired.

101.	A further difficulty is that Mrs. Botha’s own bank account indicates that she was in a credit balance in each monthly cycle that she has been receiving interim maintenance. Clearly the maintenance claimed and awarded was not entirely necessary.

102.	There is no evidence that Mrs. and Mr. Botha established a standard of living resulting from the marriage, agreed to by both spouses, enjoyed by both husband and wife on the basis now set out by Mrs. Botha. There is no evidence as to which portion of married life. Mrs. Botha cannot now enjoy. The main  difference  between  her unmarried and married lifestyle  amounts to residence in an owned home with mortgage bond in a now  upmarket suburb contrasted with rented accommodation in a now (but not then) downmarket suburb. The evidence is that Mr. Botha met the majority of household expenses while the spouses lived together and that Mrs. Botha was free to utilise her income for her own and her daughter’s needs. The lifestyle she now lives is not the ‘marital lifestyle’ at all.   

103.	The court was referred to a number of judgments which, it was submitted, support the approach that the needy spouse is entitled to maintenance from the financially able spouse solely on the basis that she could not herself maintain the standard of living established during the marriage. I have already pointed out that the standard of living claimed by Mrs. Botha was not established as a ‘marital lifestyle’. 

104.	 Zwiegelaar v Zwiegelaar 2001 (1) SA 1208 (SCA) does not assist Mrs. Botha.  The Supreme Court of Appeal decided that it was competent to have made an order for payment of a lump sum amount for purchase of household necessaries so as provide for maintenance requirements and that such order did not offend against section 7(2) of the Divorce Act.  That court made no comment whatsoever on the entitlement of the appellant to maintenance. Similarly the unreported judgement of the full bench in the Cape Provincial Division of Weiner v Weiner (Appeal A995/2004) takes the matter no further. The wife who claimed maintenance in that case had not been in employment and “would probably not be able to obtain permanent employment but only temporary contract work” [para 9] if at all while Mrs. Botha has been and is in employment and there is nothing to suggest that the marriage has rendered her continuing employment less certain or less remunerative. The reference in Weiner supra to the standard of living enjoyed by both parties during the last years of their marriage does not assist Mrs. Botha since, in the present case, no such standard of living has been established. 

 Limited Period Maintenance

105.	In argument at the close of the trial, Mr. Van Huyssteen asked the court to award maintenance to Mrs. Botha for the limited period of five years.  When asked to explain the reasoning behind any such order, he responded that she would thereby become “incentivised to become self supporting”.

106.	The court’s understanding of rehabilitation gives meaning to the concept and purpose of limited period maintenance. The spouse who has been disadvantaged or disabled in some way by the marriage is enabled though training or therapy or opportunities to be restored either to the economic position vis a vis employment which she occupied prior to the marriage or to be reintroduced to the ability to participate effectively and profitably in normal economic life.

107.	Mr. Van Huyssteen’s answer ignores the reality that there is no evidence that  Mrs. Botha was not self supporting before the marriage and that she is less able to support herself or has suffered in her ability to support herself by reason of the marriage. It has not been suggested by Mrs. Botha that she earns less in her current employment than she would have if she had not entered into the marriage or that her employment is less secure by reason of the marriage. There is no evidence that a further five years of rehabilitative maintenance would enable Mrs. Botha to support herself to any standard of living different to that which she is now able to provide for herself. It was never Mrs. Botha’s case that she cannot support herself because of her marriage; her case was that she is unable to meet what  she claims are now her living expenses.

108.	The submission that rehabilitative maintenance should be ordered “to provide a window of opportunity” ignores the fact that Mrs. Botha has already had two full years of maintenance of R15 000 per month plus payment of all medical and other expenses for herself and her major daughter. Indeed, if Mrs. Botha had any claim to rehabilitative maintenance that claim has been met and extinguished.     

Medical Expenses

109.	Mrs. Botha (and her daughter if permitted) has not taken up the medical aid assistance offered by her employer. She is currently registered on Mr. Botha’s medical aid scheme and he is, pursuant to the Rule 43 Order, making payment of all her medical expenses (and apparently those of her daughter).

110.	I appreciate that it may take some time for Mrs. Botha and her employers to facilitate her membership of her employer’s medical aid.  

111.	I also note that Mr. Botha’s employers partially subsidise that portion of the medical aid membership which is enjoyed by Mrs. Botha.

112.	Accordingly, I intend to make an order which will allow for a period of grace during which Mrs. Botha can make her own arrangements to meet her medical and other expenses. I do not intend to order that Mr. Botha meets those expenses which are not covered by the medical aid scheme. That will be for Mrs. Botha’s account.

CONCLUSION 

113.	On divorce the courts are bound to give effect to the consequences of marriage that flow automatically from the proprietary system chosen by the parties. The Bothas chose to marry out of community of property and profit and loss  excluding the provisions of the accrual system. The payment of the sum of R20 000 indicates that the parties were alive to any financial loss or inconvenience which might result from the dissolution of their marriage. Mr. van Huyssteen’s suggestion for some form of redistributive order cannot now be entertained.

114.	No right has accrued to Mrs. Botha that she should be maintained by Mr. Botha solely by reason of her 6 year marriage to Mr. Botha. Any claim she makes must be determined within the parameters of the provisions of Section 7(2) of the Divorce Act.

115.	The issue of support must be based on a contextualisation and balancing of all those factors considered to be relevant in such a manner as to do justice to both parties.

116.	At the time of the marriage, Mrs. Botha’s lifestyle and responsibilities were, in no way, the result of choices made or dictated by Mr. Botha or dependant upon him.

117.	I am mindful that there is no evidence that Mrs. Botha contributed to the marriage in the traditional role of homemaker any more than did Mr. Botha and that she retained and exercised her earning capacity during that time.  Both prior to and during the marriage she acted as an economically independent adult.   

118.	Amongst the many difficulties I have with the schedules of expenditure alleged by Mrs. Botha are that the schedules are presented and computed per creditor and not per category of expenditure with the result that the content of the expenditure and assessment thereof and the averred needs of Mrs. Botha cannot be determined or decided. There is overlapping of expenditure on Mrs. Botha and her twenty four year old daughter for whom Mr. Botha is not responsible. Accordingly, one cannot determine which expense is for the daughter and whether support is also sought for her on an indefinite basis.  There is overlapping and duplication of expenses.  There is expenditure for the benefit of third parties. There is no evidence as to which expenditure was incurred by both Mr. and Mrs. Botha during the marriage.

119.	In the circumstances it is not possible to determine whether or to what extent Mrs. Botha’s reasonable and necessary monthly expenses for herself exceed her own income.

120.	The expenditure which has been proven in this court has not been linked with the marital lifestyle of Mr. and Mrs. Botha while they resided together. It is a lifestyle which is duplicitous, includes a person for whom Mr. Botha bears no legal responsibility, is extravagant. I do not find that Mrs. Botha has established a marital lifestyle in which she is now entitled to be maintained.

121.	I therefore find that it is not necessary to determine the ability of Mr. Botha to make  any contribution towards Mrs. Botha’s living expenses because no basis has been shown why Mr. Botha should be “forced to augment her income” (see Lincesso v Lincesso 1966(1) SA 747 (W) at 750.)

122.	In the result the claim of Mrs. Botha, defendant in the main action and plaintiff in reconvention must be dismissed. 

COSTS

123.	Mr. Botha, plaintiff in the main action and defendant in reconvention, has been substantially successful. Costs should follow the result.

ORDER

124.	A decree of divorce is granted.

125.	Mr. Botha, plaintiff in the main action and defendant in reconvention, shall retain Mrs. Botha, defendant in the main action and plaintiff in reconvention, on the medical aid scheme to which he currently subscribes and make payment of all premiums in respect of such membership for the period up to and including 30th December 2008. Mrs. Botha is liable for all medical expenses and excess not covered by the medical aid scheme.

126.	Mrs. Botha, defendant in the main action and plaintiff in reconvention, shall pay the party-party costs of Mr. Botha, plaintiff in the main action and defendant in reconvention.

Dated at Johannesburg   9th June 2008

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Satchwell J

Date of Hearing: 7th, 9th, 13th May 2008 

On Behalf of Plaintiff:
	Adv. N Smit instructed by Deneys Reitz Attorneys

On Behalf of Defendant:
	Mr. Van Huyssteen from Van Huyssteen Inc.