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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

CASE NO: 32083/2021

(1)  REPORTABLE:   NO

(2)  OF INTEREST TO OTHER JUDGES:  NO

(3)  REVISED: NO

DATE: 26 July 2024

  SIGNATURE

In the matter between:

 

B[...], M[...] E[...]                                                                          Plaintiff

 

and

 

B[...], A[...] R[...]                                                                          Defendant

 

JUDGMENT

 

FORD AJ,

 

Introduction

 

1.                      On 31 January 2024, I granted the plaintiff a decree of divorce, and reserved judgment in respect of the patrimonial consequences of the divorce.  Pursuant hereto, as the trial was concluded without closing arguments having been rendered, the parties agreed to a timeline for the submission of written arguments, the last having been filed on 20 March 2024.

 

Background facts

 

2.                      The parties met in 1983. A relationship ensued and in December that year they got engaged.  They were both employed by Allied Bank at the time (1984).  On 18 April 1984, the parties got married as the plaintiff had fallen pregnant. She had to resign, because the bank did not allow a husband and wife to work together at the same branch. The marriage was concluded out of community of property, without an accrual (“the agreement”).

 

3.                      It became apparent that the parties have different recollections of the events leading up to the conclusion of the agreement. The plaintiff testified that she did not have an opportunity to seek legal advice in respect of signing the agreement prior to the marriage. Her recollection of the events leading up to the conclusion of the agreement are as follows. She was informed about the agreement a day before the wedding. An attorney arrived at her workplace (Allied Bank) with the agreement which had been prepared in advance, and she was requested to sign the document without reading the contents thereof. She was very young at the time, and didn’t appreciate what she was signing. She explained further that she did not have a true / full / clear understanding of the full consequences of the agreement. She understood that the parties would have separate estates, that there would be no marital power between the parties and that both of them could contract freely. She did not, at the time of concluding the agreement, understand the full long-term consequences thereof. She contended that the eccentricities of the agreement were never explained to her.

 

4.                      The defendant’s recollection of the events, as alluded to above, differs. He recalls that it was in fact the plaintiff's parents’ idea for them to sign an agreement. Further that, he and the plaintiff went to a notary, who explained to them what a marriage out of community of property is all about, as well as what the exclusion of the defendant’s marital powers entails. Approximately one week later, he received a telephone call from the notary’s offices informing him that the agreement had been prepared, whereafter he and the plaintiff went to the notary’s offices to sign the agreement, one day before the wedding.

 

5.                      The plaintiff’s dissention to the defendant’s version is principally triggered by the fact that her mother has a standard 6 (today, grade 8) qualification and that her father is an electrician. She contends that her parents were by no means, back then, in a position to give them legal advice with regards to an antenuptial contract. She denied, in addition, ever going to a notary’s office to sign the agreement, but asserted instead, that the attorney had come to the bank where she worked, where they signed the agreement.

 

6.                      The plaintiff admitted during cross-examination that after she had signed the agreement, she read it and understood its contents.

 

7.                      The parties’ marriage commenced from humble beginnings. They were both employed in Ermelo at the time.

 

8.                      On 20 November 1984, the parties’ first child, R[...] B[...], was born. After her pregnancy, having previously resigned, the plaintiff sought new employment, which she managed to obtain at a different Allied branch.

 

9.                      In 1986, approximately two years later, the defendant received an offer to assume a new role, which promotion required him to work in Secunda. He discussed the offer with the plaintiff, and they decided, so the defendant contends, that the promotion would be in their best interest. The defendant accepted the promotion, resulting in a significant increase in his salary, to approximately twice that of the plaintiff.

 

10.                During or about 1986, the parties moved from Ermelo to Secunda where the plaintiff was able to secure a lateral transfer to a similar position she formerly held in Ermelo.

 

11.                On 2 November 1989, the parties’ second child, A[...] J[...] B[...], was born.

 

12.                In 1991, the defendant was offered a promotion at the Pretoria branch. He contends that he discussed this offer with the plaintiff, who agreed it would be in their best interest if he accepted the promotion, which also meant that they needed to relocate to Pretoria.

 

13.                The plaintiff was able to secure a lateral transfer from her employer to a similar position at its Pretoria branch. The parties consequently relocated to Pretoria during or about 1991. As a result of the aforementioned promotion, the defendant was now earning a lot more than what he previously earned.

 

14.                During or about 1992, the defendant was dismissed by his employer, rendering him unemployed for approximately six months, whereafter he secured employment at Total in Middelburg. According to the defendant, he discussed the new position with the plaintiff, and they decided that it would be in their best interest if they were to relocate to Middelburg.

 

15.                The plaintiff was able to secure yet another lateral transfer, in Middelburg.  In 1992, the parties subsequently relocated to Middelburg. She testified that it was also in their best interest to move to Middelburg, as her parents were residing there, and could help her with the two children. In Middleburg, on account of his hard work, so the defendant contends, his working hours became even longer, and his employer offered him a further promotion, which would require him to work in Ohrigstad – approximately 180 kilometers from Middelburg.

 

16.                The defendant testified that he discussed this promotion with the plaintiff, and they decided that it would be in their best interests if he accepted the promotion. However, in order not to disturb his family’s living conditions, and considering the fact that their oldest child was in a primary school in Middelburg, the parties agreed that he would reside in Ohrigstad during the week and that he would return home to Middelburg, during the weekends.

 

17.                The defendant excelled in his career, resulting in his employer offering him a further promotion during or about 1996. He would however be required to work in Randburg.

 

18.                As was previously the case, the defendant testified that he discussed this with the plaintiff, and it was decided that he would accept the promotion, which would improve the defendant’s living conditions as he would now be staying in Middelburg, and undertake a daily commute between Middelburg and Randburg. The defendant testified that he made this sacrifice in order not to disturb his family’s living conditions.

 

19.                The aforementioned arrangement continued until 1997, when the defendant’s employer offered him a further promotion, which would require him to work in Bethlehem. According to the defendant, he discussed this promotion with the plaintiff, and they agreed that it would be in their best interest for him to accept the position, which would now require the entire family to relocate from Middelburg to Bethlehem.

 

20.                The entire B[...] family relocated to Bethlehem in 1997. The plaintiff was able to secure a lateral transfer from the Middelburg to the Betlehem branch.

 

21.                In 2002, the defendant was offered a further promotion, which would now require him to work at its head office in Johannesburg. The defendant testified that he discussed this promotion with the plaintiff, and it was again decided that it would be in the family’s best interest for the defendant to accept the promotion. The parties accordingly relocated to Johannesburg during or about 2002.

 

22.                The plaintiff was yet again able to obtain a lateral transfer from her employer’s Bethlehem branch to its Northcliff branch (in Johannesburg). This was her final relocation due to work opportunities. The parties’ eldest daughter was now in matric.

 

23.                During 2007 the defendant had a substantial number of accumulated annual leave days, which was paid out to him. He received an amount of R120 000.00 which he used as a deposit on a new vehicle (Honda) bought for the plaintiff, and which the plaintiff still has and still uses.

 

24.                During or about 2008 / 2009 the parties’ youngest child finished high school.

 

25.                During 2010 the defendant resigned from Total and commenced employment with Puma Energies in Johannesburg. From then on, the defendant would travel extensively for work purposes.

 

26.                During 2011 the plaintiff’s employer (ABSA at the time) was undergoing a restructuring and her employer gave her two options, either be transferred to its CBD branch in Johannesburg or take early retirement. The plaintiff testified that she did not want to travel to the Johannesburg CBD area and hence she discussed the early retirement option with the defendant, to which no objection was raised. In fact, so the plaintiff contends, he assisted her in that regard. As such, she elected to go on earlier retirement during November 2011. She was 51 years old at the time.

 

27.                Prior to the plaintiff going on early retirement, the parties’ respective monthly income was as follows:

 

37.1.              The plaintiff’s monthly salary was R15 000; and

 

37.2.              The defendant’s monthly salary was approximately R70 000.

 

38.                From the time that the plaintiff went on early retirement, she received R800 per month from her pension fund, most of which she used for her yoga classes.

 

39.                During or about 2012, the parties’ previous matrimonial home (in Risidale, Johannesburg) was sold for R875 000. R800 000 of that amount was used as a deposit on the new matrimonial home (in Johannesburg), and which property was registered in the name of the plaintiff only. R400 000 of the R800 000 was the defendant’s contribution to the new matrimonial home. The defendant paid the balance of the purchase price (therefore approximately R550 000).

 

40.                During or about 2017, the defendant suggested to the plaintiff that they should explore “swinging” and in fact met other couples in this regard, but nothing, of an intimate nature, came from this. The plaintiff testified that at one such event she went as far as taking off her blouse and dancing in her bra. The defendant contends on the other hand that the plaintiff ended up dancing topless.

 

41.                The parties agree that they enjoyed a normal sex life up until 2019. During that year (2019), the plaintiff started seeing a psychologist, as she was unhappy in the marriage. From or about that time the plaintiff started withholding sex from the defendant.

 

42.                From or about June 2020 the parties no longer shared a bed. Shortly thereafter (April 2021) the defendant moved out of the matrimonial home and the plaintiff instituted her divorce proceedings in July 2021.

 

43.                In the divorce proceedings before me, the parties disagree about:

 

43.1.              the reasons for the breakdown of their marriage;

 

43.2.              the proprietary consequences of the divorce as prayed for by the parties, specifically the plaintiff's claim in terms of Section 7(3) of the Divorce Act;

 

43.3.              The amount of spousal maintenance and medical aid contributions payable by the defendant to the plaintiff, as well as the duration of said payments; and

 

43.4.              who should bear the cost of suit.

 

The breakdown of the marriage

 

28.                The plaintiff testified, in line with what is set out in her particulars of claim, that she was bullied by the defendant during the subsistence of their marriage, and that he subjected her to emotional abuse. She further submitted that he subjected her to narcissistic treatment up until the point where they both lost interest in the marriage in 2019.

 

29.                The plaintiff testified, that the defendant treated her in a degrading manner, and that she found the exposure to the swinging parties and him watching pornography emotionally draining, and, to a certain point, completely unacceptable. She further submitted that the defendant had often showed tendencies of aggression and displayed fits of rage towards her, that he would shout at the children (when they were still small), but that he never became physically violent towards her.

 

30.                The plaintiff testified that she felt neglected during the marriage, and that the defendant failed to support her emotionally. He refused to allow her to grow during her time of employment and repeatedly required her to secure transfer from one location to the other, even when relocating was not necessary for purposes of the defendant obtaining alternative employment.

 

31.                The plaintiff testified further that the defendant displayed an explosive temper. She was afraid of him, and in the event of her challenging his authority, it would always be a case of “his way or the highway". According to the plaintiff, the defendant would scream at her to stop talking, and would at times gesticulate to that effect.

 

32.                The plaintiff testified that the defendant always made her feel as if he did her a favour by marrying her, that she should be grateful he married her, that he is tolerating her, that he was taking care of the children, and that her view on things, did not hold much water.

 

33.                She stated that she would very often, in the event of an argument, make herself “small’ and would for the sake of maintaining the peace, keep quiet in order not to provoke the defendant and that she would eventually apologise to him, even though she did nothing wrong. She also testified that often, in the alternative to an explosive episode, she would get the silent treatment for days on end, until she eventually had to apologise for whatever it was that provoked defendant’s irritation.

 

34.                With regards to fearing for her safety, the plaintiff testified that when her daughter sometimes challenged the defendant, that he would hit her and that he became physical by banging his hands on the counter. She further referred to him slamming on counters and throwing things around in anger and that she feared that it would escalate into it becoming physically abusive.

 

35.                The plaintiff asserted that after an episode of rage, she would often go to the children to apologise, to them, for their father's behaviour.

 

36.                She gave examples of belittling comments that the defendant made towards her with regards to her physical appearance.

 

37.                She would often say to him, every time he watched pornography, it felt as if something in her died. She explained that the pornography and the swinging made her feel cheap, degraded and dirty and as if he wanted to live out fantasies in respect of other woman with her. She did not grow up this way and she did not agree with it, yet for the sake of peace, and trying to keep the defendant happy, she attended a few swinging interactions with him, but it never led to her being intimate with third parties, as she would simply not have agreed to that.

 

38.                The plaintiff stated that the defendant's reaction to the above concerns, was that he simply ignored her and continued watching pornography. It is common cause between the parties that at one point when she asked him why he does that, he said “it was something to do”.

 

39.                In 2019, at the behest of the defendant, the plaintiff went to see a psychologist. According to her the defendant perceived her as becoming cold towards him and her showing less interest in intimacy. She confronted the defendant about her feelings, but the breakdown of the marriage was, at that time already, irretrievable.

 

40.                The defendant’s counsel contended that the plaintiff was overdramatic in her testimony. Pointing out that the plaintiff testified that throughout their marriage, there was no communication between her and the defendant, but noted that this was improbable as the parties were married for close to 40 years and had two children, and that the common cause facts (namely the various discussions about the defendant’s career and the various relocations) contradicted this.

 

41.                It was argued that the plaintiff sketched a picture that her marriage to the defendant was a “marriage from hell”. She even testified that soon after she married the defendant, she discovered that he had a bad temper.

 

42.                The defendant however submits, that the following demonstrate that things were not as bad as what the plaintiff alleges:

 

42.1.            The plaintiff did not leave the defendant after they got married. In fact, the parties had a second child during 1989, after being married for 5 years;

 

42.2.            Not once during the course of the marriage did the plaintiff flee from the matrimonial home, considering the fact that her parents were alive and were staying in Middelburg. To the contrary, the plaintiff always agreed to the proposed or suggested relocations. As such the plaintiff’s version as per par 8.3.2 of her particulars of claim, that she relocated on the instructions of the defendant, is simply not true;

 

42.3.           When all the children had left the matrimonial home, during or about 2009, the plaintiff did not leave the defendant or move out of the matrimonial home. To the contrary, the plaintiff elected to go on early retirement during November 2011, therefore becoming even more financially dependent on the defendant;

 

42.4.           The plaintiff testified that she went on early retirement (during November 2011) because she thought that becoming a full-time housewife and therefore spending more time with the defendant would improve their marriage relationship. The defendant submits that this narrative does not support the “marriage from hell” picture, portrayed by the plaintiff;

 

42.5.           The plaintiff bemoaned the fact that the defendant watched pornography and even said to her that it was something to do. Yet, her evidence during cross-examination was that the defendant had been watching pornography since moving to Middelburg – from or about 1992. If she really found the defendant watching pornography irreconcilable, she would have left him long ago;

 

42.6.           During cross-examination the plaintiff was questioned on her allegations that she would have liked to climb the corporate ladder but never had the opportunity to do so (as a result of the defendant’s career choices, the various relocations and the fact that they had children), and the plaintiff was referred in this regard to the fact that she voluntarily chose to go on early retirement during November 2011. Instead of conceding that it was her choice, the plaintiff then sought to blame everything on the fact that she is white and therefore did not fit into ABSA bank’s BEE requirements. As pointed out during her cross-examination, the fact that the plaintiff is white was irrelevant as it was her own choice (for her convenience) to go on early retirement, rather than work in the Johannesburg CBD;

 

44.                The defendant asserted that the aforesaid propositions, namely that the plaintiff was overdramatic and sought to blame the defendant for all her life choices (including her out of wedlock pregnancy), affects her credibility, especially when it comes to the defendant’s “misconduct” on which she relies for her claim for a redistribution order.

 

Plaintiff’s claim for a redistribution order

 

45.                In respect of her claim for a redistribution order, the plaintiff prays for an order that the defendant transfers to her one half or such portion of the defendant's estate as this court may find just and equitable in terms of Section 7(3) of the Divorce Act (“the Act”).

 

46.                The Act, in its relevant sections, reads as follows:

 

“7. Division of assets and maintenance of parties —

 

(3)                   A court granting a decree of divorce in respect of a marriage out of community of property —

 

(a)            entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded;

 

(4)     An order under subsection (3) shall not be granted unless the court is satisfied that it is equitable and just by reason of the fact that the party in whose favour the order is granted, contributed directly or indirectly to the maintenance or increase of the estate of the other party during the subsistence of the marriage, either by the rendering of services, or the saving of expenses which would otherwise have been incurred, or in any other manner.

 

“(5)   In the determination of the assets or part of the assets to be transferred as contemplated in subsection (3), the court shall, apart from any direct or indirect contribution made by the party concerned to the maintenance or increase of the estate of the other party as contemplated in subsection (4), also take into account -

 

(a)            the existing means and obligations of the parties, including any obligation that a husband to a marriage as contemplated in subsection (3) (b) of this section may have in terms of section 22 (7) of the Black Administration Act, 1927 (Act No. 38 of 1927);

 

(b)            any donation made by one party to the other during the subsistence of the marriage, or which is owing and enforceable in terms of the antenuptial contract concerned;

 

(c)             any order which the court grants under section 9 of this Act or under any other law which affects the patrimonial position of the parties, and

 

(d)            any other factor which should in the opinion of the court be taken into account.

 

47.                The plaintiff contends that, having regard to Section 7(7) of the Act, that it would be appropriate for the court to take into consideration the full pension interest of the defendant in determining the patrimonial benefit claim, instituted by the plaintiff.

 

48.                The plaintiff readily accepts that in a claim for redistribution, she bears the onus to prove the grounds upon which the claim is based. In this regard she contends that her claim for redistribution arises out of the contributions she made to the growth and/or the increase of the defendant’s estate, during the subsistence of the marriage, whether or not such contributions were made directly or indirectly.

 

49.                The plaintiff contends further that she is eligible to institute a claim of this nature, as the marriage was concluded prior to 1 November 1984.

 

50.                It was argued on behalf of the plaintiff that neither party presented any written agreement in terms of which they agreed to any form of distribution of assets during the marriage, and that neither of the parties led any evidence with regard to a verbal or informal agreement that they reached in respect of redistribution of assets during the course of the marriage. It is accordingly submitted, that based on the common cause facts, that the plaintiff meets the minimum requirements to institute a claim for redistribution in terms of Section 7(3), read with sub-sections (4), (5) and (7) of the Act.

 

51.                The plaintiff's estate consists of an immovable property situated at 1[...] P[...] Place, known as No. 1[...], C[...] Road, Weltevreden Park, Roodepoort, which is registered only in the plaintiff's name, and which property has an agreed market value of R1 585 000.

 

52.                This property was purchased when the parties’ former matrimonial home in Risidale, Johannesburg was sold. It was bonded with ABSA and the parties received the benefits of the reduced interest rates due to the plaintiff being an employee of ABSA at the time. The property was paid up in full, but later sold for R875 000.

 

53.                The Risidale property was registered in the parties’ names and when it was sold, the entire proceeds of the sale were employed towards purchasing the Weltevreden property. The Weltevreden property was purchased for R1 350 000, and it is common cause that the balance between the proceeds of the Risidale property and the purchase of the Weltevreden property was paid by the defendant in cash. The property is not bonded.

 

54.                The plaintiff further owns a Honda Jazz vehicle, valued at R70 000, and half of the household contents at a value of R25 000. Her further assets, as per the minutes of the pre-trial, as of 12 January 2024, consists of a balance of R101 263 in her bank accounts.

 

55.                The plaintiff’s ABSA pension fund value was R1 726 182, from which she draws a monthly income of R3 544,33. She has a Liberty Life Guaranteed Investment Plan with a value of R416 590, which will mature in September 2026 at a value of R585 733. She currently draws a monthly income of R2 167.81 from this investment plan. She further has a Stanlib Liberty Life annuity with a value of R402 132 as at the time of trial, and from this she receives a monthly income of R1 535 per month as at the time of signing the minutes of the pre-trial. The value of her ABSA deposit investment account was R280 062. The amount held in her ABSA deposit account of R91 096.64, was depleted as she had to make payment towards legal fees.

 

56.                The plaintiff led evidence with regards to the summary of her assets and explained that as at 12 January 2024, the total value of her estate including the immovable property and the value of her pension and annuity, was R4 049 952.36, and that this has decreased by the R91 000, which brings it roughly to R3 950 000, and it would further decrease as aforesaid. She was, however, not sure what her final legal fees would be at the conclusion of the trial.

 

43.                The plaintiff testified that every time she transferred employment positions within the bank, it was a lateral transfer. It did not necessarily result in an increase in income or a better position in the bank for her.

 

57.                It was argued on behalf of the plaintiff that her career trajectory at the bank up until 2011 when she retired, was a lateral one. There was no substantial growth in her career, if at all.

 

58.                The above proposition aligns with the plaintiff’s evidence to the effect that, due to the transfers, she often missed out on opportunities of climbing the corporate ladder, because the transfers would sometimes take place in the middle of the year or it would be for a short period, and she did not get the opportunity to really make an impression and have a substantial performance evaluation that could possibly put her in a position for an improved or higher position within the bank.

 

59.                She also testified that she had to get home after work to take care of the house and the children, and that she did not have the opportunity to put in extra effort and be seen or stand out at work.

 

60.                During cross-examination it was put to the plaintiff that she could have used the time from 2009, when their son matriculated, to really pursue her career and climb the corporate ladder. What the proposition sought to advance was that the plaintiff did not use the opportunity to start climbing the corporate ladder once the kids were no longer dependent.

 

61.                The plaintiff responded that in 2011, there was a corporate restructuring at her work, and she would have had to go and work at ABSA in the Johannesburg CBD. This, together with the fact that she would have been required to travel into town, was a daunting thought, and she was not satisfied with the proposed restructuring offer that was made to her. The plaintiff testified that the defendant assisted her in challenging this offer, and when her objection was not favourably considered, on both parties’ versions, she took the early retirement package that was offered in the alternative.

 

62.                The plaintiff testified that at that stage she was 51 years old, and did not have the skills to compete in the open market to be able to pursue a second career.

 

63.                It is not in dispute that the parties agreed that the plaintiff would take early retirement in 2011, and it was further not in dispute that the defendant continued to provide her with financial spousal support.

 

64.                The evidence led by both parties, confirmed that the income that the plaintiff derived from her ABSA pension and the two investment/annuity products that render a monthly income, at that stage was approximately R800 and of nominal value. Both of them confirmed during evidence that this amount was initially predominantly used to pay for her personal expenses and yoga classes.

 

65.                It was argued, as can be seen from the common cause facts, the position changed as the income the plaintiff draws increased to R7 247.27 which is utilised for her own expenses, relating to the former matrimonial home.

 

66.                In addition to increased financial contributions, as she drew more income from her pension and investment/annuity, the contribution that the plaintiff continued to make after her retirement was employed towards creating a homely environment for the defendant. She testified that she continued to employ a domestic only twice a week and other than that, she attended to the household tasks, as she always did during the subsistence of the marriage.

 

67.                The plaintiff testified further that she continued to contribute pro rata towards household expenses with the income from her pension and the annuities. This was not disputed by the defendant.

 

68.                The plaintiff relies on the following facts and factors in support of her claim for a redistribution order:

 

68.1.              By working for 27 years and by spending her income on the common household expenses, the minor children’s needs and even buying clothing for the defendant, she saved the defendant expenses in this regard and thereby contributed to the growth and/or increase of his estate;

 

68.2.              During her 27 year employment (up to November 2011) the plaintiff could not advance in her career as she continuously had to be transferred to new employment, which was done on the instructions of the defendant;

 

68.3.              For the first 13 years of their marriage the plaintiff took care of all the household duties and thereafter the parties employed a domestic worker, which salary was paid by both the plaintiff and the defendant, and by virtue of the plaintiff contributing to the said domestic worker’s salary, she saved the defendant expenses in this regard;

 

68.4.              The plaintiff took care of the parties’ minor children, as a result of which she saved the defendant various expenses, which he would otherwise have incurred;

 

68.5.              The plaintiff created a nice home for the defendant where he “could enjoy all the creature and comfort which [he] as the plaintiff’s husband was entitled to”, and which therefore enabled him to advance his career, and by so doing, the plaintiff indirectly contributed to the growth and increase of his estate; and

 

68.6.              Even after November 2011, the plaintiff still contributed to the general household expenditures, as a result of which the defendant therefore did not have to incur these expenditures, with the further result that his estate further increased.

 

69.                The plaintiff has, according to her updated January 2024 Financial Disclosure Form (FDF), an estate of R4 million, which consists of:

 

69.1.              A fully paid-up house with a present agreed value of R1 585 500;

 

69.2.              A paid up Honda Jazz vehicle;

 

69.3.              An investment with a present value of R416 590, and which will mature on 1 September, when it will then have a value of R558 773;

 

69.4.               A living annuity with a present investment amount of R402 132;

 

69.5.               An ABSA deposit investment with a present value of R280 062;

 

69.6.               Her ABSA pension fund in the amount of R1.7 million; and

 

69.7.              50% of the furniture in the Plaintiff’s house.

 

70.                The defendant offered, in par 32.7 of his amended plea, to cede his 50% interest in the said furniture to the plaintiff, which will entail that all the furniture in her house belongs to her.

 

71.                It was argued that the reason why the defendant’s estate is presently approximately R13 million (correctly calculated R14.7 million) is because he worked himself to the bone, and in the process made sacrifices for his family.

 

72.                The plaintiff’s testimony was to the effect that she was employed for 27 years of the 39 years of that the marriage subsisted, and that she contributed, on a pro-rata basis in accordance with her monthly income, towards the household necessities and maintaining the parties’ minor children and improving the matrimonial homes.

 

73.                The plaintiff’s counsel pointed out that the defendant, in his amended plea admitted that both parties contributed to the salary of the domestic worker. During evidence led, so it is contended on behalf of the plaintiff, it became clear that the plaintiff's contributions were nominal in comparison to the contributions made by the defendant in respect of shared costs. Simply based upon the fact that his income exceeded hers.

 

74.                The aforementioned is amplified by the common cause fact that at her date of retirement in 2011, the plaintiff was earning R15 000.00 and currently earns R7 247.27 in comparison to the defendant's gross income, with bonuses included, which amounts to R98 938.00 as at 2024.

 

75.                It is the plaintiff's submission, as per her evidence, that her contribution in the form of physical work done as well as financial contributions towards the household, directly contributed towards the defendant, saving the costs of employing a fulltime domestic worker to assist with these household tasks.

 

76.                The plaintiff led evidence further, that she was actively involved with taking care of the parties’ children on a day-to-day basis, until the youngest finished matric in 2009. She also actively partook in transporting the children, attending sporting activities, assisted with homework and in general took care of them, in fact most of the time. She also led evidence that this task fell squarely on her shoulders, when the defendant was at work or working away from home.

 

77.                The plaintiff conceded that in the early days of their marriage, the defendant helped with looking after the parties’ daughter, when she was still a baby, and did so every alternative Saturday when the plaintiff had to work. The plaintiff testified further that, if she did not take care of the children to the extent that she did, it would have been necessary for the parties to employ staff in the form of a nanny or an au pair or incur some form of other additional expenses to provide for the children's care and transportation. By her attending to the children's care and transportation, she directly contributed towards saving the expenses of employing staff and this further directly contributed towards the growth in the defendant's estate, as these expenses did not have to be incurred and paid.

 

78.                During cross-examination the plaintiff persisted that her contributions towards taking care of the children and the household tasks, directly contributed to saving costs and thereby making more funds available for either the household or to be contributed towards the growth of the defendant's estate.

 

79.                The plaintiff maintained that throughout the marriage, she created a home environment, not only for herself and the children, but also for the defendant. She gave clear and cogent evidence as to the assistance that she gave him in the sense that the house was always ready, his meals were cooked, when the domestic worker was not there and he needed to leave on a business trip at the drop of a hat, she would see to it that his washing and ironing were done.

 

80.                In addition to the evidence led with regards to contributions to the household, the children, household expenses, and so forth, the plaintiff led evidence that the defendant benefited from her employment at the bank. She gave clear evidence of the benefits that they received in respect of the mortgage bonds and motor vehicle finance at a reduced rate from her position as an employee at the bank. She also led evidence with regard to savings in respect of bank charges and service fees on credit cards and cheque accounts and explained that she even had a credit card in her name which the defendant made use of, to save costs.

 

81.                She gave further evidence of how numerous of the current policies and investment products that are held in the defendant's name, were initially obtained under certain staff benefits, and at reduced rates or better interest rates in her capacity as an employee at the bank, and that those debit orders, for quite a long time and until there was a change in legislation, went off from her bank account, and that these benefits, albeit not major amounts, contributed to the defendant’s estate, because he didn’t have to incur those expenses, adding to the growth of his estate.

 

82.                It was argued that the benefits or the saving of these amounts, were not challenged and that the defendant did not lead any evidence to the contrary, save that he was not in agreement with the notion that the parties drew significant benefit from making use of the bank accounts and financing benefits the plaintiff received as a bank employee.

 

83.                Having taken into consideration all the evidence that was led, the plaintiff maintains, that she contributed directly towards the growth of the defendant's estate, as her contributions, albeit not on a grandiose scale or equivalent to the defendant's earning capacity, assisted him in saving expenses which he would have otherwise had to incur. Further that those savings directly contributed to him building a substantial pension and investment portfolio.

 

84.                The plaintiff testified that she resigned from her permanent employment during or about November 2011, and that prior to this, she repeatedly had to terminate her employment or be transferred to new employment, which curtailed her growth in the workplace and which prevented her from furthering her career in the bank, which was, according to the plaintiff, done on the instruction of the defendant, whenever a relocation, on account of the defendant having obtained alternative employment, was necessitated .

 

85.                On each occasion that the parties relocated, the defendant's employment position placed him in a better financial position. According to the plaintiff, the defendant's view was that this was for the benefit of the family, the family's expenses, the family's lifestyle and the family's future. And the money that the defendant was earning, according to the plaintiff, was referred to as “our money”.

 

86.                The defendant contends that the plaintiff owns the house in which she has been staying since 2013. And with the house fully paid up, the defendant effectively made substantial contributions to the house, in the amounts of R400 000 and later R550 000. These are, according to the defendant, substantial donations, which must be taken into account in terms of Section 7(5)(b) of the Act.

 

Spousal maintenance and the medical aid issue

 

87.                It was argued further that, the plaintiff’s claim for spousal maintenance stems from Section 2 of the Act which reads thus:

 

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 remarriage of the party in whose favour the order is given, whichever event may first occur.

 

88.                The plaintiff asserts that the issue of whether or not she is entitled to spousal maintenance is not in dispute, as the defendant unequivocally testified that he has a duty to support her and that he in fact feels obliged to do so. The only issue for this court to determine is the actual amount of spousal maintenance and the defendant’s contribution to medical aid.

 

89.                It is common cause that the total amount of expenses that the plaintiff incurs per month is R23 502.00. It is evident from the list of expenses not challenged that there is no room for savings or luxuries or building her capital reserves.

 

90.                The plaintiff claims an amount of R25 000 spousal maintenance (discussed below), and the defendant, as per his evidence, tendered an unequivocal contribution to lifelong maintenance with a CPI increase every year until she passes away, remarries or co-habits with another man in the amount of R18 000.00 per month.

 

91.                In evidence in chief, as well as cross-examination, the plaintiff was asked to provide an explanation as to why she persists with a claim for maintenance in the amount of R25 000, when her expenses are R23 502, and why the R18 000 was not acceptable to her as unequivocally tendered by the defendant.

 

92.                The plaintiff responded that:

 

92.1.              the listed expenses are average expenses and with regards to the expenses that the defendant challenged, she testified that she does attend church on Sundays and makes a contribution, which is where the R250.00 per month comes from;

 

92.2.              with regards to birthday and Christmas gifts of R600, she says that this was to build up a kitty over the year to buy birthday and Christmas gifts for the parties’ two major children, as well as their four grandchildren. She testified that, historically, the defendant would ask her to buy Christmas gifts for their children and grandchildren, and over the most recent December (2023) holidays, he actually transferred an amount of R5 000 to her to purchase such;

 

92.3.              the R230 that she saves, or sets aside on a monthly basis, to build up a bit of a savings to pay to her domestic worker and gardener at the end of the year, as they do not effectively take leave during the year, and they are entitled to one day's leave for every 17 days that they work. Her explanation was, that the amount that she pays them at the end of the year, basically compensates for the fact that they do not take paid leave and it also serves as a bit of a year-end bonus.

 

93.                The plaintiff submits that a proper case that her expenses claimed were reasonable and necessary was made out, and that she has been accustomed to incurring all these expenses during the marriage - she is not claiming any luxurious expenses, in fact, so it was argued, the contrary applies.

 

94.                The plaintiff testified that the R18 000 per month (as tendered by the defendant) does cover her basic expenses combined with the income that she receives. She did, however, testify that she is of the view that the defendant can afford to pay the R25 000 and that the reason why she seeks the relief for the higher amount, is owing to the fact that she has no ability to generate additional income and grow her current capital reserves to provide for unforeseen expenses such as medical expenses.

 

95.                The plaintiff is concerned that, once reaching retirement age, and she is no longer a beneficiary on the defendant’s medical aid, she will have to incur the costs of her own medical aid. Further that the current amount that she could ascertain for a similar medical aid as what she has been accustomed to, same being fully comprehensive, was about R6 500.00 per month. This amount was not challenged during cross-examination nor denied by the defendant.

 

96.                The plaintiff testified further that she was concerned that she would in future be responsible for expenses not paid by the medical aid, in addition to the above premium, and that she would not be able to afford such expenses.

 

97.                It was argued that since the defendant articulated his intention to continue to pay for his own medical aid, but was unwilling to continue to pay for the plaintiff's medical care, beyond retirement, that she has to see to that for herself.

 

98.                The plaintiff testified that, should the court be inclined to grant her the R25 000, it will enable her, once she is removed from the defendant's medical aid, to enable her to manage the premium, and in the interim she would also be able to build up some capital resources, bearing in mind her available capital resources will be depleted by legal fees, in order to cover any shortfalls in her monthly expenses or medical expenses not paid by the medical aid.

 

99.                The plaintiff testified that having regard to the defendant’s income and expenses, that he would be in a position to afford paying the plaintiff spousal maintenance in the amount of R25,000.00 per month.

 

100.           The plaintiff testified further that she fears that, when the defendant reaches retirement age or at any time after the divorce order is made that the defendant might go to the Maintenance Court and ask for a reduction or a variation of this maintenance order, and that she would then be left in a destitute position should she not receive the maintenance on a monthly basis any longer.

 

101.           The defendant submits, in response to the plaintiff’s maintenance claim that she persists with her claim for maintenance in the amount of R25 000 per month and additionally, also seeks an order directing the defendant to keep her on his medical aid for the rest of her life.

 

102.           The defendant points out that the plaintiff testified during her evidence in chief that her monthly expenditures are, as per her updated January 2024 Financial Disclosure Form (FDF), namely R23 502 per month.

 

103.           It is also common cause that the plaintiff receives a monthly income in the total amount of R7 247 (from her pension fund, living annuity and investment plan). The defendant submitted that the plaintiff simply alleges that she is entitled to maintenance in the amount of R25 000 from the defendant as –

 

103.1.               he can afford it; and

 

103.2.               she wants to build up capital resources.

 

104.           The plaintiff asserts that the income she receives (R7 247) should not be taken into account for purposes of determining her maintenance claim and that such income should be treated as her entitlement to spending money / savings – consistent with being married out of community of property.

 

105.           The defendant points out that he undertakes in paragraph 32.6 of his plea (as amended) to pay the plaintiff effectively lifelong monthly maintenance in the amount of R18 000 per month, which amount shall increase on the anniversary date of the divorce order in accordance with CPI.

 

106.           The defendant confirmed during his evidence that he stands by this undertaking, and hence the proposed order as per the amended plea. The defendant argues that the plaintiff provided no authority for the proposition that:

 

106.1.         she is entitled to more maintenance (R25 000) than what her own actual calculations reflect her monthly maintenance needs are (R23 502); and

 

106.2.         she is entitled to use her monthly income (the said R7 247) purely as spending money, and that same should not be taken into account for determining the maintenance to be paid by the defendant.

 

107.           It is argued on behalf of the defendant that the reason why the plaintiff did not provide the court with any authority in this regard is because both propositions are contrary to established legal principles. In this regard it is argued that:

 

107.1.         A court has no discretion to grant a party more maintenance than what he or she alleges her monthly maintenance needs are, simply because the other spouse can afford more[1];

 

107.2.         the court must take both parties’ income into account in determining the maintenance order to be granted.

 

108.           The defendant submitted that the monthly maintenance that he undertakes to pay as proposed in his amended plea is more than adequate if added to the plaintiff’s income (i.e. R18 000 plus R7 247) to cover the plaintiff’s expenses (R23 502), and that the plaintiff is simply not entitled to a higher maintenance amount.

 

109.           The defendant submits that the plaintiff is opportunistic in this regard. Her own evidence was that she lived a frugal life during the subsistence of the marriage. The plaintiff now seeks a better lifestyle post the divorce order as granted on 31 January 2024, arguing that this is not permitted in law.

 

110.           The defendant points out that the plaintiff alleges that she fears that the defendant may apply for a reduction of the maintenance order by the court, in particular when he retires during February 2027. It is common cause that the defendant has to retire when he reaches the age of 65, as per the terms of his employer’s policy. The defendant’s evidence in this regard was not challenged when the plaintiff’s counsel cross-examined him.

 

111.           In response to the plaintiff’s testimony that she fears that the defendant might apply to the maintenance court for a reduction of the maintenance, that he has to pay her, specifically from the moment that he goes on retirement during February 2027, the defendant asserts that there is no merit in the plaintiff’s fear:

 

111.1.         Firstly, it is common cause that the defendant has been paying monthly maintenance to the plaintiff from the moment that he moved out of the matrimonial home during April 2021;

 

111.2.         Secondly, the defendant testified that he undertakes to keep on paying maintenance to the plaintiff as per his amended plea. The bona fides of his undertaking was not challenged under cross-examination;

 

111.3.         Thirdly, the defendant will find it extremely difficult, if not impossible, to convince the maintenance court that the said court should reduce his maintenance obligations, even when he retires during February 2027, taking into account the value of his estate;

 

111.4.         Fourthly, reliance is placed on the fact that at first, as per the defendant’s original plea, the defendant only offered to pay rehabilitative maintenance to the plaintiff for six months and to also keep the plaintiff on his medical aid for six months period; and then only two weeks before the trial (namely on 12 January 2024), the defendant gave the undertaking, as per his amended plea, to pay the plaintiff effectively lifelong maintenance in the amount of R18 000 and to keep her on his medical aid until he retires. The defendant submits that there would have been merit in any perceived fear if he had (for example) at first offered the plaintiff monthly maintenance in the amount of R18 000 and then later on offered her less maintenance or even stopped paying maintenance. However, the facts of this matter are quite the opposite. The defendant has always paid maintenance to the plaintiff, without protest and notwithstanding what was stated in his original plea, and the defendant has since January 2024 simply undertaken to keep on paying maintenance to the plaintiff as he has been doing all along.

 

112.           As such, the defendant submits that there is no merit in the plaintiff’s subjective and unreasonable fear.

 

113.           The parties agree that defendant has a duty to pay spousal maintenance to plaintiff.

 

114.           Insofar as the plaintiff seeking an order that the defendant must keep her on his medical aid post February 2027 and/or that he must be liable for her medical expenses after February 2027, the defendant submits that:

 

37.1.              the plaintiff did not testify that she suffers from a serious or chronic disease and therefore that she has a realistic fear that she will have to incur substantial expenses in this regard; and

 

37.2.              the plaintiff is presently 63 years old, should the plaintiff predecease the defendant before February 2027, the Plaintiff will not require medical aid.

 

38.                The defendant contends that if the plaintiff still requires medical aid after February 2027, she can approach the maintenance court for an increase in her maintenance.

 

39.                The defendant contends that the plaintiff did not prove her claim for more maintenance than what the defendant undertakes to pay as per his amended plea, and medical aid after February 2027.

 

Analysis

 

The decree of divorce

 

40.                I granted a decree of divorce on 31 January 2024, having satisfied myself that the plaintiff was able to prove that the marriage relationship between the parties has broken down irretrievably.

 

41.                Section 4 of the Act, provides as follows:

 

4.     Irretrievable break-down of marriage as ground for divorce

(1)    A court may grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

 

42.                The plaintiff’s evidence, about what caused the disintegration of the marriage, such as the fact that she did not enjoy the love and affection that she deserved, and that she was subjected to treatment that did not accord with her values, meets the statutory threshold. The state of the irreparability of the relationship is further evident when considering the fact that the parties have not lived together as husband and wife for an extended period of time.

 

43.                I accordingly proceed to deal with the proprietary issues that are to be determined, flowing from the divorce:

 

43.1.                The redistribution claim; and

 

43.2.                Spousal maintenance (inclusive of the medical aid issue)

 

The redistribution claim

 

44.                A redistribution claim, of this nature can be instituted by the plaintiff, as the marriage was concluded prior to 1 November 1984.

 

45.                At the trial the parties tendered different versions as to the conclusion of the agreement. I found the plaintiff’s version on the whole more probable. She explained that her parents were not in a position to advise the parties on the conclusion of such an agreement, given their scholastic qualifications. Furthermore, her recollection of somebody coming to the bank to have the parties sign the agreement are admitted by the defendant, save for the fact that there appears, on the defendant’s version, also to have been a meeting at a notary’s office.

 

46.                I have considered the common cause facts as agreed between the parties and conclude that the plaintiff met the minimum requirements to institute a claim for redistribution in terms Section 7(3), read with sub-sections (4), (5) and (7) of the Act.

 

47.                In order to discharge the onus for the granting of a redistribution order, the plaintiff is required to prove that she contributed directly or indirectly to the maintenance or increase of the estate of the defendant during the subsistence of the marriage, either by the rendering of services, or the saving of expenses which would otherwise have been incurred, or in any other manner.

 

48.                I am satisfied, having considered the totality of the evidence, that the plaintiff met the statutory requirements as embodied in the relevant sections of the Act. I say this for the following reasons:

 

48.1.              It is common cause, and it was confirmed during evidence led by the plaintiff and the defendant, that she was employed for 27 years of the 39 years of the subsistence of the marriage, and that she contributed on a pro-rata basis in accordance with her monthly income towards the household necessities and maintaining the parties’ minor children and improving the matrimonial home;

 

48.2.              The plaintiff led evidence that her contribution, in the form of physical work done as well as financial contributions towards the household, directly contributed towards the defendant, saving the costs of employing a fulltime domestic worker to assist with those household tasks;

 

48.3.              Initially the parties did not have any domestic help and when they were able to afford help for the remainder of the duration of the marriage, the parties only made use of a domestic worker twice a week;

 

48.4.              The plaintiff took care of household chores, such as cleaning, cooking, washing, ironing and saw to it that she created a homely environment for the defendant and the minor children;

 

48.5.              I do not accept the defendant's evidence that the plaintiff's contributions did not have any value, or made any substantial difference towards his ability to amass the assets that he had been able to do during the marriage.  The defendant benefitted from the plaintiff’s contributions to the household, be that on a prorated or a non-financial basis, referred to earlier;

 

48.6.              The parties had at the outset of their marriage agreed that the defendant would be the breadwinner, and that the plaintiff would be the homemaker;

 

48.7.              By agreeing to be the homemaker and taking care of the household, looking after the children and maintaining the home while the defendant pursued his career, the defendant benefitted from the plaintiff keeping the fort while he could work away, as long as it suited him and as and when it suited him, and was able to amass a substantial estate in excess of R14.7 million;

 

48.8.              The defendant acknowledged that he reaped the rewards of his hard work throughout his career, which cannot be viewed separate from the contributions and sacrifices that the plaintiff in fact made to assist in enabling him to build an estate in excess of R14.7 million;

 

48.9.              The defendant benefited from the plaintiff’s employment at the bank. She gave cogent evidence of the benefits that they received in respect of the mortgage bonds and motor vehicle finance she was able to amass, at a reduced rate as a direct result of the position she occupied as an employee at the bank;

 

48.10.         The plaintiff led evidence with regards to savings in respect of bank charges and service fees on credit cards and cheque accounts and explained that she even had a credit card in her name, which the defendant used to save costs;

 

48.11.         The plaintiff testified that numerous insurance policies and investment products that are held in the defendant's name, were initially obtained under certain staff benefits and at reduced rates or better interest rates in her capacity as an employee at the bank, and those debit orders, until such time that there was a change in the legislation, went off from her bank account. These benefits, albeit not huge amounts, contributed to the defendant having secured some saving in respect thereof, which in turn benefitted the growth of his estate.

 

49.                Having taken all the evidence into consideration, I am satisfied that the plaintiff directly contributed towards the growth of the defendant's estate. Her contributions, albeit not on a similar scale or equivalent to the defendant's earning capacity, assisted him in saving expenses that he would otherwise have had to incur. I agree with the plaintiff’s counsel, that those savings directly contributed to him building a substantial pension and investment portfolio.

 

50.                In Bezuidenhout v Bezuidenhout, in the context of a redistribution order, the SCA found that in terms of section 7(3) of the Act, the traditional role of a housewife, mother and homemaker should not be under-valued because it is not measurable in terms of money.[2]

 

51.                I am satisfied that the plaintiff has proved an entitlement to a redistribution order, and I deem a redistribution order equal to 35% of the defendant’s estate to be just and equitable.

 

Spousal maintenance

 

52.                The principle considerations when awarding spousal maintenance are cogently set out in the Act[3].

 

53.                In Grasso v Grasso[4] the court held that in appropriate circumstances, a wife should continue to enjoy the same standard of living and the same good things in life she did whilst the marriage subsisted.

 

54.                In Taute v Taute[5] the court held that a spouse claiming maintenance is required to establish a need for spousal maintenance. In the matter before me, the plaintiff has done exactly that, save that she seeks spousal maintenance in the amount of R25,000 whereas the defendant tendered R18,000.

 

55.                It is clear from the plaintiff’s evidence that the income that she receives, in the amount of R7 247, should not be considered for purposes of determining her maintenance claim.

 

56.                The defendant undertook to pay the plaintiff, lifelong monthly maintenance in the amount of R18 000 per month, which amount shall increase on the anniversary date of the divorce order with CPI. The plaintiff maintains on the other hand, that she is entitled to R25 000, which is more than what her own actual calculations reflect her monthly maintenance needs to be, namely R23 502. The main justification for the plaintiff’s persistence appears to be her concerns around what will happen to her medical aid, when the defendant reaches retirement age in February 2027.

 

57.                The plaintiff’s concern in this regard is relevant, but is not a present reality. In light of the evidence presented, I am satisfied that for the period between the date of this order, and the date when the defendant retires, he be ordered to effect payment of spousal maintenance, in the amount of R18,000 (with the necessary inflationary increases) until 2027, when he reaches retirement age, and that the spousal maintenance, from the date that the defendant retires in 2027 be concomitantly adjusted to R25,000 per month.

 

58.                In the result, I make the following order:

 

ORDER

 

1.              A decree of divorce is granted effective 31 January 2024, as previously confirmed;

 

2.              A redistribution order is hereby issued in favour of the plaintiff, directing the defendant to pay to the plaintiff 35% (thirty-five percent) of the defendant's estate. In the unlikely event of a disagreement between the parties in respect of the value of the defendant’s estate, an actuary shall be appointed, at both parties’ costs, to undertake such a calculation;

 

3.              The defendant is ordered to pay spousal maintenance to the plaintiff in the amount of R18,000 per month (in line with CPI) until he reaches retirement age, whereafter spousal maintenance shall be paid to the plaintiff in the amount of R25,000 per month;

 

4.              The defendant is ordered to pay the plaintiff’s costs of suit, and counsel fees shall be at Scale A.

B. FORD

Acting Judge of the High Court

Gauteng Division of the High Court, Johannesburg

 

Delivered:     This judgment was prepared and authored by the Judge whose name is reflected on 26 July 2024 and is handed down electronically by circulation to the parties/their legal representatives by e mail and by uploading it to the electronic file of this matter on CaseLines.  The date for hand-down is deemed to be 26 July 2024.

 

Date of hearing:                          31 January 2024

Final date of written submissions: 30 March 2024

Date of judgment:                        26 July 2024

 

Appearances:

For the plaintiff:	Adv. G. Olwagen-Meyer
Instructed by:	DPS Attorneys
For the defendant:	Adv. G.J. Ebersöhn
Instructed by:	Gerrie Ebersöhn Attorneys Inc

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