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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

REPUBLIC OF SOUTH AFRICA

OFFICE OF THE CHIEF JUSTICE

(GAUTENG DIVISION, PRETORIA)

DATE: 18/9/2015

CASE NO: 43745/13

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

IN THE MATTER BETWEEN

S. S. Z.                                                                                                                             Plaintiff

and

A. D. Z.                                                                                                                       Defendant

JUDGMENT

LEGODI J

HEARD ON: 02 SEPTEMBER 2015

JUDGMENT HANDED DOWN: 18 SEPTEMBER 2014

[1] This is a divorce action instituted by the plaintiff, Mrs S. S. Z., against her husband to whom she is married out of community of property with the accrual system. At the center of the dispute is whether the defendant should forfeit any benefit from the marriage, in particular, proceeds of the house, pension benefits and or policy benefits.

[2] The grounds for the forfeiture were stated at the beginning of the trial as being: the defendant's failure during the marriage to contribute towards the day to day household necessities, the defendant's failure to contribute the establishment and creation of the estate of the parties, in particular his failure to contribute towards the improvement and renovations on the house, the defendant's failure to contribute towards the retention and funding of the plaintiffs life policies and investments.

[3] The parties had known each other and started their relationship in the mid­ eighties, but only got married in 1994. At the time and before their marriage, the plaintiff knew that the defendant had an alcohol problem. They have no children born out of the marriage relationship, but at the time of their marriage relationship each one of them had two children from their previous relationships. The plaintiff was working at ASSA bank, Johannesburg, and the defendant as an auctioneer.

[4] The house in question belonged to the plaintiff and had it before their marriage. The house has since been sold and the proceeds thereof, is the subject of the dispute. The defendant moved out of the common home during 2012, although at the time they had not been living together as husband and wife, for a while.

[5] Section 9 of the Matrimonial Property Act 88 of 1954("the Matrimonial Act") deals with forfeiture of rights to accruing sharing. It provides that the right to share in the accrual of the estate of a spouse in terms of the chapter is a patrimonial benefit which may on divorce be declared forfeit, either wholly or in part. For the purpose of the present case, this should be considered also in the context of section 9 of the Divorce Act 70 of 1979 ("the Act"). Section 9 of the Act deals with forfeiture of patrimonial benefits of marriage. Subsection (1) thereof provides as follows:

"When a decree of divorce is granted on the ground of the irretrievable breakdown of marriage the court may order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either or the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited".

Principle

[6] Cumulative consideration of all relevant factors seem to be at play in terms of subsection (1), and the court will make an order only when is satisfied that, if an order for forfeiture is not made, the one party ('guilty party') will unduly be benefited in relation to the other party ('the innocent party'). It is an exercise of a discretion guided by consideration of the duration of marriage, the circumstances which gave rise to the breakdown and any substantial misconduct on the part of either of the parties.

[7] It is clear from the wording of the subsection that to qualify for forfeiture, based on misconduct, such misconduct must be "substantial". I understand this to mean that, it must not only be a misconduct which does not accord with the marriage relationship, but also that the misconduct must be serious. Undue benefit in my view, is also a relative term. Benefiting from one spouse's sweat, in my view, would not necessarily amount to undue benefits. To come to the conclusion of undue benefit, one would be guided by a number of factors for example, refusal to work when it is possible to do so, squandering of money and other assets of one's estate and other factors on the handling of the estate which is prejudicial to the other spouse. It is not in my view, any circumstance which can give rise to the breakdown which will result in a substantial misconduct to justify forfeiture. A particular circumstance may be enough for irretrievable breakdown of marriage relationship, but not necessarily sufficient to be categorized as a substantial misconduct to justify a forfeiture.

[8] A party who seeks forfeiture has the onus to establish on the balance of probabilities that such an order is justified in terms of subsection (1) of section 9 of the Act. The nature of the misconduct and compliance with the ambit of the provisions of section 9 is pleaded by the plaintiff in Afrikaans as follows:

"8.

8.1. Met inagneming van die Verweerder se wesenlike wangedrag, die duur van die huwelik, en enige ander foktor wat hierdie Agbare Hof oorweeg, sat did reg en billik wees dat die Verweerder sy reg verbeur om te dee/ in die aanwas tussen die partye se onderskeie boedels.

8.2. Ter versterking van die voorgenoemde eis, sat die Eiser staatmaak op die volgende:

8.2.1. Die partye was getroud vir sowat 20 jaar voor die verbrokkeling van die huwelik tussen die partye;

8.2.2. Die Verweerder se aanhoudende a/kohol misbruik, wetke misbruik onversoenbaar was vir die Eiseres.

8.2.3. Die Verweerder se gereelde verbale, emosionele en sielkundige mishandeling van die Eiseres.

8.2.4. Die Verweerder het versuim om in 'n sinvolle manier finansieel by te dra en of altematiewelik het hy versuim om die Eiseres by te staan met dag-tot-dag hulpverlening in die bestuur van die huishouding;

8.2.5. Die Verweerder het versuim en of altematiewelik sy weiering om fanansiee/ by te dra tot die huishouding, het daartoe gelei dat die Eiseres se boede/ waarde verminder het, ten einde die huisehounding in stand te hou".

I now turn to deal with each of the averments, considering also the evidence led on each of the averments.

The period of marriage relationship

[9] The parties had lived together since about 1984, but only got married in 1994. So they have been together for many years and in marriage for more than twenty years, although the defendant moved out of the common home during 2012. Perhaps one need to consider what is the essence of "the duration of marriage" in section 9 of the Act. Say for example, parties who have married in community of property get divorced six months after the marriage and the other spouse seeks equal division of the joint estate or to share in the accrual system. The duration of the marriage would become critically relevant in dealing with the issue whether a party against whom forfeiture is sought, should forfeit wholly or in part. In the present case, because of the long period of the duration of the marriage, other circumstances for forfeiture had to be present and strong before forfeiture can be ordered.

[10] I also do not think that the period before marriage can be ignored, especially in the circumstances of the present case. The marriage did not change anything to the way they have been living since 1984. There were minor children from both sides and the parties lived together as if they were married in the same common home which belonged to the plaintiff. If the defendant assisted in one way or the other towards maintenance of the family and other household necessities, in whatever limited way it might have been, that directly or indirectly would have benefited the plaintiff. I deal with this further when I deal with renovations or improvements to the house I now deal with the other aspect pleaded by the plaintiff.

Misuse of alcohol and emotional abuse of plaintiff

[11] Inasmuch as this is intended to be used as a "substantial misconduct" constituting a ground for forfeiture, I find it necessary to deal with it. The so-called "Alkoho/ misbruik" (alcohol misuse) by the defendant ought to be seen in context. The plaintiff was not a stranger to the abuse of alcohol by the defendant. Long before their marriage, she knew that the defendant was having a problem. He had been taken in, about twice for rehabilitation before they got married. Despite all of this, she found it reconcilable with marriage relationship to get married to the defendant and want I to assume that because the defendant was rehabilitated. If that is so, perhaps she was right because during marriage, the defendant only went for injection referred to during evidence as "boosters". He was injected according to him, to ensure that he does not get tempted or get addicted to drinking liquor. The nature of the misuse of alcohol during marriage, if any, in my view, was not sufficiently dealt with during evidence safe to say, it contributed towards the irretrievable breakdown.

[12] As regards emotional abuse by the defendant when he was drunk, the evidence remained neutral. The allegations were denied by the defendant. But what is interesting is that, the plaintiff's son testified for the plaintiff, yet he said nothing about the emotional abuse of her mother by the defendant. Therefore, the alleged misuse of alcohol during the marriage inasmuch as it might have been intended to prove "substantial misconduct" on the part of the defendant, the plaintiff has not succeeded in doing so.

Failure to make contribution financially

[13] This allegation is made in paragraph 8.2.4 of the plaintiff's particulars of claim quoted earlier in paragraph 8 of this judgment. It is not the plaintiff's contention that the defendant did not contribute financially, but rather, that his contribution was minimal. This too must be seen in context. According to the defendant, the plaintiff was in charge of his finances. Fridays were " Vluisdae" and Saturdays were groceries days. She had his bank card which she used for whatever purchases she wanted to do for as long as there was money in the account. The point is, it was not in dispute that she used his card to do some purchases, although she sought to underscore the extent of such financial help. I should also be worried by some aspects of the defendant's evidence, although not put to the plaintiff under cross-examination. This relates to the purchase of the car for the plaintiff by his son. The evidence by the defendant was that he had financially assisted in the payments of the installments for the vehicle. In cross­ examination of the defendant it was suggested that he had only made about two or three payments towards the installments. Again, this was underscoring financial contribution by the defendant. What I find strange is that, when the plaintiff was asked as to what financial contributions the defendant ever made, she did not mention this. Payment of installments on the vehicle is something not to forget easily. I would have attached no value to the evidence, as it was not put to the plaintiff in cross-examination, but in the cross-examination of the defendant, an admission to the payment of installment by the defendant for the car, was made.

[14] Another aspect relevant to the topic under discussion is the inclusion of the plaintiff as a beneficiary in the defendant's medical aid. This was after the plaintiff had resigned from her employment. She was employed by ABSA bank and stationed in Johannesburg whilst she was living around Pretoria. Because of ill-health, she resigned. The defendant included her in his medical aid. It appears from the few statements that had been discovered and used during evidence that an amount of about R2500 over a period of time was deducted from the defendant's bank account each month for medical aid. But also, of relevance is the suggestion that it was for a very short period. However of importance is the fact that the defendant as well at one stage or the other fell ill to the extent that he could no longer work. He had a heart attack and other complications.

[15] Perhaps it is important to mention that any failure to contribute by a spouse towards the household necessities and creation of the estate, is guided by each spouse's income and utilization thereof. The nature of the misconduct is on the utilization of one's income. The evidence by both parties has been unhelpful regarding their income. At one stage, the defendant was running a business. The exact amount of what was the income and use thereof is not clear.  Similarly, the plaintiff after her resignation from ABSA bank got herself involved in selling biscuits and cars, the exact nature of her income derived therefrom is also not clear. She got her pension benefits, part of which she paid off the bond. On the other hand, the defendant had annuity pay out. How the funds were utilized is not clear, except to say, it was used together with the plaintiff and also went on holidays together at his treat.

[16] To find in favour of the plaintiff, one must find substantial misconduct to have been established in the handling of the defendant's funds. With the evidence presented in this trial, I am not satisfied that 'substantial misconduct' has been established to justify forfeiture based on failure to contribute meaningfully towards the household necessities and creation of the estate. I now turn to the other topic.

Renovations/improvements

[17] In his plea, the defendant denied the suggestion that he had made no contribution towards the maintenance and renovations on the house. He referred to about ten items which he specifically indicated that he had done the renovations and the amounts thereof which are pleaded in Afrikaans in the plea as being:

"13.1.1Nutshut                                                                    R3500-00

13.1.2   Afdak en betonvloere                                            R3500-00

13.1.3   Verf                                                                        R2500-00

13.1.4   Matte                                                                     R2500-00

13.1.5   Teel in badkamer, gang en kombuis                      R3000-00

13.1.6   /ngeboude kaste                                                    R10 000-00

13.1.7   Vervang van geute                                                R4000-00

13.1.8   Voorhek                                                                 R500-00

13.1.9   Aanbou van gastebadkamer en stort                     R10 000-00

13.1.10  Aanhou van betonmuur                                        R2500-00"

[18] The plaintiff suggested that the only renovations or improvements done out of the list above, was the "nutshut". The rest were done by her, before or after the marriage and in some instances through the help of her son. However, this evidence was materially contradicted by her son who admitted that all the items were effected by the defendant.  The evidence by the plaintiffs son casts a very serious credibility on the evidence of the plaintiff. She had no reason if she was candid with the court to insist that she effected improvements on the house or immovable property when she did not. The inference is that, she wanted to keep the defendant away from the proceeds of the house at all costs.

[19] The issue however, is whether any renovations and or improvement affected before the marriage plays any role to the forfeiture order sought by the plaintiff. The contention made on behalf of the plaintiff was that it does not. I cannot agree with this submission. The property was sold during 2014 in the amount of R1 000 080.00 making a profit of R750 000 after having deducted what was owed to the bank. The evidence did not suggest that the improvements effected by the defendant before or after the marriage did not add to the value of the property which resulted in the sale of the house for R1 000 080-00. Without any evidence to the contrary, it must be found that the improvements made by the defendant added value to the house.

The Ring

[20] The plaintiff in her discovery documents included a valuation certificate which was addressed to the plaintiff and is dated the 30 April 2014. For one reason or the other, the plaintiff decided not to refer to this document. The ring was valued at R80 900.00. Counsel for the plaintiff suggested that I should ignore the document as the plaintiff was not cross-examined on it and also that it has not been shown that it was the ring which the defendant bought for the plaintiff. That might be so, insofar as it might be relevant to the defendant's own contribution, but irrespective of the source of the ring, it should be accepted as something adding to the value of the estate from which the defendant will be entitled to have a share, should it be found that forfeiture order is not justified.

Pension and leave benefits

[21] The plaintiff spoke about her pension and leave benefits which she brought into the marriage after she had resigned from ABSA bank without starting exactly how much she got and how much was used towards pay off the bond loan. This lack of full disclosure during her evidence in my view, has a bearing on her credibility and reliability. Whilst the defendant is blamed for lack of full disclosure, she too did not do so. The forfeiture order sought is not sustainable.

Undue benefit

[22] In dealing with the "principle" in paragraphs 6 to 8 of this judgment, I did not touch on the element of "undue benefit" as stated in section 9(1) of the Act. The issue at hand is whether if forfeiture is not ordered in the present case, the defendant in relation to the plaintiff will unduly benefit from the estate. It is the plaintiff who must establish the requirement of undue benefit. In other words, that if an order for forfeiture is not granted, the defendant will be "unduly benefited" due to his substantial misconduct, which resulted in him not contributing to the creation of the value of the estate. I had already found that "substantial misconduct" has not been established. In the absence of substantial misconduct, there can be no 'unduly benefited'.

Conclusion

[23] The defendant's right to share in the accrual of the estate of plaintiff in terms of the Matrimonial Property Act is patrimonial benefit on which I had already found that there is no sufficient evidence to declare forfeiture in terms of section 9 of the Divorce Act and Matrimonial Property Act respectively. It is common cause that the marriage relationship has irretrievably broken down. Parties have not been staying together as husband and wife since 2012. They do not have children together and none of them is claiming maintenance from each other.

[24] Consequently an order is hereby made as follows:

24.1. A decree of divorce is hereby granted;

24.2. Parties to share in the accrual of the estate of each other in terms of Chapter 1 of the Matrimonial Property Act 88 of 1984;

24.3. Each party to pay his or her own costs.

_________________________

M F LEGODI

JUDGE OF THE HIGH COURT

FOR THE PLAINTIFF: ADV G. JACOBS

 

INSTRUCTED BY: M L SCHOEMAN ATTORNEYS

Zambesi Rylaan 300

Sinoville, PRETORIA

TEL: 012 562 9900 REF:

MLS/cl MZ0001

 

FOR THE DEFENDANT:  ADV Z. MARK

 

INSTRUCTED BY: LOUBSER VAN DER WALT INC.

1093 Justice Mohammed Street

Charles Street

Brooklyn, PRETORIA

TEL: 012 460 1915

REF: R Van Der Walt/R2095

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