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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

MPUMALANGA DIVISON, MIDDELBURG (LOCAL SEAT)

Case no: 3747/21

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED

DATE: 08/08/2024

SIGNATURE:

In the matter between:

R[…] P[…] D[…]                                                               Plaintiff

(IDENTITY NUMBER: 5[…])

And

A[…] D[…] (BORN C[…])                                                 Defendant

(IDENTITY NUMBER: 7[…])

________________________________________________________________________

JUDGMENT

Coram Langa J

Introduction and Facts

[1] In these proceedings Mr R[…] P[…] D[...], (“the Plaintiff”), instituted a divorce action against his wife Ms A[...] D[...] born C[...] (“the Defendant”). The Plaintiff claimed amongst other things the dissolution of the marriage and division of the joint estate. In return the Defendant filed a counterclaim of spousal maintenance.

[2] Before the matter came to trial the following issues were in contention;

1. The reasons for the breakdown of the marriage.

2. Whether the Defendant is entitled to spousal maintenance, and if so, what is the amount that she is entitled to and for how long.

3. The maintenance of the one minor child.

4. Whether the Defendant is entitled to an adjustment at the division of the joint estate in terms of section 15(9) of the Matrimonial Property Act 88 of 1984, in terms of which the Plaintiff is to make a payment of the amount of R125 000.00 with interest to the Defendant.

5. Whether the Defendant unlawfully disposed of Olivia’s jewellery and collector’s coins which were placed in the care of the parties and whether the jewellery and coins in question were worth R250 000.00.

[3] When the matter eventually came to trial almost all of the issues in dispute had been settled by the parties who also agreed on the orders to be made in respect thereof. The only issues remaining in dispute are in essence the spousal maintenance and the quantum in respect of the maintenance of the minor child.

[4] I will give a brief background of the matter for context. The Plaintiff and the Defendant met in 2003 in Uzbekistan and had a romantic relationship out of which their two children namely, C[…]1 C[…]2 were born. For the record C[…]1 has recently attained the age of majority and is employed and the parties are therefore in agreement that the issue of maintenance does not arise in his case.

[5] After the birth of C[…]1 the parties got married on 10 February 2006 in Uzbekistan. And later in 2006 they returned to South Africa where they remained together as a married couple until 2021. It is common cause that the Plaintiff was a contract electrical engineer for Alstom and the only family breadwinner. In 2021 the Defendant vacated the matrimonial home with the 2 minor children and relocated to KwaZulu-Natal to reside with her sister. In October 2021 the Plaintiff instituted this divorce action.

[6] For the record the following are common cause between the parties.

1. The locus standi of the parties and the jurisdiction of this Honourable Court.

2. As he parties were married on 10 February 2006 in Uzbekistan and the applicable marriage regime in Uzbekistan is in community of property.

3. Two children were born of the marriage between the parties namely, C[…]1, the major child, and C[…]2, the minor child.

4. The Plaintiff began paying maintenance towards the Defendant from August 2021. A Rule 43 Order was also granted on 20 June 2022.

5. The marriage between the parties has irretrievably broken down and the parties have not lived together as husband and wife since August 2021, a period of more than one year.

6. The parties seek the annulment of their marriage.

7. The joint estate of the parties is to be divided, failing which a liquidator be appointed.

8. The primary residence of the minor child shall be with the Defendant who shall have sole parental rights and responsibilities of the minor child as contemplated in Section 18(2) (a), (b), and (c), and 18(3) of the Children’s Act No. 38 of 2005; and

9. An adjustment shall be affected in favour of the Defendant, on division of the joint estate in the amount of R125 000.00 in terms of section 15(9) of the Matrimonial Property Act No. 88 of 1984, to which the Plaintiff admits no liability.

Onus

[7] As spousal maintenance was the only in dispute, the parties agreed that the Defendant carried the duty to begin. For ease of reference the parties will be referred to as the Plaintiff and the Defendant respectively.

The Evidence

Mrs. A[...] D[...]

[8] The Defendant testified first and stated that she cannot speak or understand English well hence she was assisted by a sworn interpreter, Ms Oksana Efanova (“Efanova”) who interpreted from Russian to English and vice versa. She stated that her comprehension of English was rudimentary to the extent that when she initially met the Plaintiff much of their communication was done through hand signs and explanations. This was later confirmed by the Plaintiff. She further testified that she had a Grade 10 education and a certificate as a steam boiler attendant. Although she worked as a steam boiler attendant in Uzbekistan for a short while, when they moved back to South Africa, ostensibly to raise the minor children, she never sought work and essentially became a full-time housewife.

[9] She testified further that her English had improved since arriving in South Africa but that she was still not fluent in the language. She confirmed that in South Africa she did some work at a restaurant for about three weeks in 2015 but left due to the language barrier. She also worked for Hentus Trading for a period of six months during 2017 as a label painter whereafter she then went to Russia. Upon returning to South Africa, she discovered that her position at Hentus was no longer available. Although for some reason she did not state this in her evidence in chief, she did however concede under cross examination that she also worked for a short period with her sister operating a Russian food company styled Taste of Russia before she worked as quality control and painter for Hentus Trading. The Defendant confirmed that she didn’t look for further employment during the marriage and even after their separation in August 2021.

[10] The Defendant confirmed that she rents a property in Westville where she resides with the two children including C[…]1 who is now is employed. I must pause to mention here that although he is working, it is however common cause that the Plaintiff was still paying the lump sum maintenance, which included a portion of the maintenance in respect of C[…]1 all along until now. The Defendant, however, failed to indicate for how long C[…]1 has been employed, in what position he was employed or what his income is. However, C[…]2, the minor child is currently in his final school year. The Defendant testified that there was a period of time when the Plaintiff failed to pay maintenance and she consequently had to launch a contempt of court application against him.

[11] The Defendant further testified on the breakdown of the maintenance amount. She essentially referred to the amount which came from the Plaintiff as an offer during August 2021. To date, this amount has not been updated nor has the Defendant provided any bank statements to show what her actual financial position is. She is instead relying on outdated figures which include the major child in the calculation of maintenance. The Defendant confirmed that she will turn 46 on her next birthday and that she intended to seek employment. She has however given no explanation or proof as to what attempts she made to seek employment to date. The Plaintiff denied that she made any attempts to get work and said that she is content to make use of the free meal pass she is currently enjoying.

[12] The Defendant testified further that at some point she cooked and sold food on an ad hoc basis but could not make any substantial profit. She however also stated that she does not support herself currently and gets by on the spousal maintenance paid by the Plaintiff. In her opinion she needs the same amount that was offered by the Plaintiff in the proposal of August 2021 through his lawyers. When asked under cross examination whether she would survive on an amount of R15 000.00 per month, the Defendant stated that she cannot answer that question.

[13] However, most importantly, the Defendant confirmed that she was still receiving the full amount awarded in the Rule 43 maintenance order, despite the fact that the major child is now employed. She did not testify as to what she does with the additional money of about R7 000.00 per month meant for the eldest major child, which she has ostensibly been receiving for some 14 months now. She further conceded under cross-examination that she had not provided any bank statements or the industrial psychologist’s report she suggested in the Rule 43 application. The Defendant confirmed that she is 46 and therefore would still have about 20 years’ worth of working capacity.

[14] The Defendant further confirmed the contention that at some point she had access to an account in her name which had approximately R440 000.00 in it. Although it is not disputed that between March 2020 and August 2021 the money was depleted, the Defendant was however unable to account for this money save to state that a portion had been used for medical expenses and a car service. She does not even provide the amounts used and the dates of the transactions. She was also unable to explain why she had not provided bank statements or why she was relying on the Plaintiff’s proposal made three years ago. She further provided no explanation for not providing updated figures and any proof thereof.

[15] Under re-examination the Defendant confirmed that she did have access to the account with the amount of R440 000.00 and that the Plaintiff had no access nor knowledge as to the occurrences in the account. The account was closed during September 2021 after it was utilised only from March 2020. The balance of R440 000.00 was emptied and closed within one month of the Defendant vacating the matrimonial property with no explanation as to the whereabouts or usage of the money therein.

Mr R[...] P[...] D[...]

[16] In his testimony the Plaintiff confirmed the common cause issues as stated above including the children born of the marriage. He corroborated the Defendant’s evidence that during the beginning of the relationship with the Defendant, they spoke broken English even using hand signs. He however stated that after having spent some time in South Africa, the Defendant was able to speak decent English and able to read documents and accounts. He asserted that given her current understanding of the English language, the Defendant would be in a position to obtain employment and be able to work. He confirmed further that the Defendant and her sister had previously operated a successful catering business, for which he had provided the start-up capital, but that they had elected to close the business for reasons unknown to him.

[17] Regarding his personal circumstances, the Plaintiff confirmed that he had received a letter from his employer, General Electric, that his employment contract would cease from November 2024 and his final employment month would be December 2024. He further stated that this meant that he would no longer have any income from December 2024. He further stated that he has no retirement annuity or any other investments and that the house he is currently residing in as well as his vehicle belong to his employers and will cease to be available to him after the cessation of his employment in December 2024. The only assets he is left with are, according to his testimony, a television and an air-fryer.

[18] The Plaintiff further testified that he is heavily indebted to the banks in the region of R300 000.00 and that his bank accounts had almost zero credit. He further confirmed that he had set up the account with the R440 000.00 which the Defendant had access to but he was unaware as to what had been done with the money in that account. Under cross-examination he confirmed that the Defendant’s work in Uzbekistan as a steam boiler attendant was unskilled and that she earned a meagre income from it and that most boiler systems these days are automatic and electronically controlled.

[19] The Plaintiff confirmed that at some point he earned enough that it was not necessary for the Defendant to work. He however suggested that the Defendant could restart her catering business and that she had previously attempted to start a clothing and fashion import business, He confirmed that he provided about R100 000 to the Defendant to buy clothing in Turkey and Russia in order to have a clothing business in South Africa but does not know what became of the R100 000.00.

[20] Concerning the minor child’s maintenance, the Plaintiff stated that he was willing to pay between R2 500.00 to R5 000.00. This child will be attaining majority in December 2024. He however stated that starting from January 2025 he will not be having any income to pay maintenance of the minor child, who becomes a major in December of this year. He stated that his main goal now is to simply survive come January 2025, which he cannot do if he has to pay maintenance on top of not receiving an income and having no salary. He stated further that at 66 years of age he was unlikely to find employment.

Discussion

[21] With the majority of the issues having been settled, this matter essentially turns of the determination of the spousal maintenance and the child maintenance in respect of the minor child. It is trite that at law the duty of support is based on three prerequisites. The first is that there must be a relationship between the parties. Secondly, there must be a need to support and thirdly, the person called upon to support must have adequate resources to support. It is trite that a parent’s duty to support his child is sui generis and arises by operation of the law or ex lege. Further, the amount to be paid does not depend on the wishes of the party who must pay or who is asking for maintenance. It must be determined on the basis of the reasonable requirements of the one to be supported and the ability of the one required to support. Parents must therefore support their children based on the means.

[22] Applied to this case there is no issue that the minor child, C[…]2, is entitled to support until he attains majority in December 2024 or unbecomes self-supporting. Thus, the minor child’s needs have to be balanced with the Plaintiff’s ability to pay. The Defendant testified that the minor child intends to work at the end of the year. Based on this evidence, the Plaintiff is duty bound to support the minor child until at least December 2024. However, when he attains majority, the minor child can still approach court for maintenance if he is in need of maintenance and depending on the Plaintiff’s ability to pay, the maintenance court may make an appropriate order for maintenance.

[23] The Plaintiff has offered to pay a reduced amount of between R2 500.00 to R5 000.00 towards the maintenance of this child until he attains majority. Currently the Plaintiff is paying R7000 each in respect of the minor child as well as the major child. It is clear that nothing turns on the issue of the maintenance of the major child C[…]1 and it is therefore not necessary to make any determination in this respect. Given that he is now employed and self-supporting the Plaintiff is no longer duty bound to support him even though he was paying for his maintenance as well. It will be his election to continue if he so wishes.

[24] However, concerning the minor child,  the position is different. As stated above, in terms of the law the Plaintiff is under a legal duty to pay child support for him. The Plaintiff has in recognition of the duty correctly offered to continue paying his child support albeit at a reduced amount. I however cannot see any reason why there should be any change regarding the amount the Plaintiff has been paying in respect of this child. In my view there is no reason for this court to interfere with the status quo in this respect.

[25] I now turn to the issue of spousal maintenance. It is common cause that in terms of section 7(2) of the Divorce Act, 70 of 1979, (“the Act”), a court may, if there is no agreement between the parties regarding this aspect, make an order that one spouse pay maintenance in respect of the other. There is no automatic right to spousal maintenance and accordingly the spouse claiming maintenance must establish a need to be maintained by the other. AV v AV 2011 (6) SA 189.

[26] Similarly, in EH v SH 2012 (4) 164 (SCA), the Supreme Court of Appeal held that a person claiming maintenance must establish a need to be supported. If no such need is established, then it would not be just to order such a maintenance award. In making a determination on spousal maintenance, the court will therefore consider factors such as inter alia the earning capacity and means of each party, their individual needs and obligations, the duration of the marriage and other appropriate factors.

[27] Although the Plaintiff has been maintaining the Defendant all along until now, he now contends that he is unable to continue maintaining her. The Plaintiff also contends that the Defendant has failed to prove her need for spousal maintenance. As stated above, the onus rests on the party seeking the relief. The Defendant therefore bears the onus to prove that such maintenance is necessary within the confines and prerequisites dealt with above.

[28] The earning capacity of the parties is one of the main factors for consideration. The Defendant seems to argue that because she has no qualifications cannot communicate sufficiently in English, she cannot get a decent work and is therefore entitled to maintenance. The Plaintiff has however testified that she has a substantial understanding of the English language, sufficient enough to obtain employment. Given that she has done some work on her own and also with her sister, the Defendant can still be able to make a living for herself. The fact that she cannot use English fluently is in my view not a good ground why she cannot seek and find employment.

[29] However, considering that the Plaintiff has been maintaining the Defendant up to now, the issue in not whether or not she was entitled to maintenance. The question is whether she has proved that she is still entitled to maintenance, and if so, for how long the Plaintiff should be obligated to pay her maintenance.

[30] The Defendant had to lay the basis for her financial need. However, on a basic level, she has not adduced any evidence to establish and prove what her reasonable expenses may be. She provided no form of proof of her financial situation such as her bank account for example. In order to lay basis for the claim to spousal maintenance, the Defendant was required to at least assert, with proof, what her reasonable monthly expenses. Instead of providing such proof, the Defendant apparently relies on the old offer made by the Plaintiff for her maintenance about three years ago without disclosing what her own financial position is.

[31] In my view the Defendant has failed to satisfy one of the cardinal prerequisites for maintenance, which is the need for maintenance. Grasso v Grasso 1987 (1) SA 46 (C) at 57H. The failure to provide sufficient proof of the financial need would ordinarily be fatal in an application of this nature. On this basis alone her counterclaim is destined to fail.

[32] However, in addition, it must further be taken into account that it was not disputed that the Plaintiff provided capital start up for the Defendant on two separate occasions. First with Taste of Russia, and then the clothing company. On both occasions the Defendant squandered those opportunities and even blew the start-up money she had been provided by the Plaintiff. Those opportunities in my view did not require any special skills or language proficiency. They only required discipline and hard work. She now seeks maintenance from the Plaintiff when these opportunities would have provided her with some income.

[33] In Kroon v Kroon 1986 (4) SA 616 (E) the court stated that courts are not at liberty to grant maintenance to women who can and ought to work. Given her age and the facts that her English has improved, the Defendant should be able to work if she set herself to finding a suitable employment. On the other hand, there is unrefuted evidence the Plaintiff will be unemployable, and in all probability, unemployable considering his age and the state of unemployment in this country. It will in all probability be impossible for the Plaintiff to continue maintaining her beyond December 2024.

[34] Furthermore, the fact that the Plaintiff has for about 14 months been paying maintenance for C[…]1 while the latter had already attained the age of majority also has to be taken into account in this determination. This essentially means that period the Defendant was receiving the R7000.00 meant for C[…]1 despite her knowledge that he had already obtained employment. She failed to explain what she did with the money in excess of at least R80 0000 she received. This also constitutes money which the Plaintiff was not obliged to pay but which the Defendant could have saved and used wisely for her upkeep.

[35] In addition, the Defendant has not disputed that the couple had about R440 000. 00 in their bank account which had been earned by the Plaintiff. She however failed to explain what she did with the money to which only she had access. There is no doubt that she could have invested or used these funds to set up a business or assist her in these times of need.

[36] Lastly, although it is recognized that their marriage was an extended one, it has however not been disputed that during this marriage the Plaintiff, as the only bread winner, provided for the Defendant and the children. As stated above, he further provided her with opportunities which she squandered. The Plaintiff’s situation has however changed as stated above. He is 65 and about to retire with no source of income. While the couple may have lived comfortably, it is now clear that their standard of living has to change. It must further be considered that the Defendant is only 45 years of age whereas the Plaintiff is 65 and about to retire in six months’ time or so. While she may not necessarily be able get the type of employment she wants, it is however common cause that the Defendant can still work for a period of 20 years from now.

[37] Furthermore, the court has to take into account that the Defendant benefited as she took possession of the couple’s assets when she vacated the matrimonial home. The Plaintiff is only left with television set and an air-fryer. These factors do not support the Defendant’s claim for maintenance.

Conclusion

[38] In conclusion I find that the Defendant has failed, on a balance of probabilities, to discharge the onus of proving that she is entitled spousal maintenance. In the light of this finding, her counterclaim of spousal maintenance should be dismissed.

Costs

[39] Concerning the costs it is trite that the costs should follow the results. I find no just cause to deviate from this rule and therefore the Plaintiff as the successful party should be awarded the costs. The Defendant has failed to prove her counterclaim which is essentially the only dispute which went on trial. The Defendant should therefore carry the costs.

Order

[40] In the result I make an order in the following terms:

1. The bonds of marriage between the parties are dissolved and a final decree of divorce is granted.

2. The division of the joint estate is ordered.

3. The minor children’s primary residence shall be with the Defendant.

4. The Defendant shall have sole parental rights and responsibilities of the minor child as contemplated in Section 18(2)(a), (b) and (c), and 18(3) of the Children’s Act No. 38 of 2005.

5. An adjustment be affected in favour of the Defendant on division of the joint estate in the amount of R125 000.00 in terms of Section 15(9) of the Matrimonial Property Act No. 88 of 1984.

6. The maintenance in respect of the minor child to continue in terms of the existing order.

7. A receiver and liquidator be appointed as agreed between the parties to divide the joint estate with the effective date of determination of the value of the estate being the date of divorce, with the powers as set out in Prayer 16 of the Defendant’s Counterclaim.

8. The Defendant’s counterclaim in respect of spousal maintenance is dismissed.

9. The Defendant is to pay the costs.

MBG LANGA

JUDGE OF THE HIGH COURT

Appearances:
For the Plaintiff:	Advocate T Paige-Green
Instructed by	VZLR Inc
For the Defendants:	Advocate AJJ Du Plooy
Instructed by:	A Kyprianou Attorneys
Date heard:	22 May 2024
Date delivered:	08 August 2024

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 08 August 2024 at 15h30.

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