IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINSIAL DIVISION)

In the matter between:

and

THE TRUSTEES FOR THE TIME BEING OF

LOUW, J:

[1] In this divorce action the plaintiff and the first defendant were married out of community of property by antenuptial contract on 4 February 1983. The second defendant is the trustees for the time being of the C de V Pienaar Trust. I shall refer to the spouses as the plaintiff and defendant or the parties and to the second defendant as the trust.

[4] The trust was established on 1 January 1996. The defendant sold the farm to the trust on 15 March 1996 and thereafter transferred it into the name of the trust on 8 August 1996. Defendant has since rented Juriesfontein from the trust under two successive 5 year contracts of lease at an annual rental of R60 000,00 (VAT excluded). It is common cause that the sale, transfer and lease of Juriesfontein were effected with the knowledge of the plaintiff for estate planning purposes on the basis of advice received by the defendant.

[5] After their marriage, the parties lived together on Juriesfontein for more than 20 years (save for a brief separation at the end of 1988 and the beginning of 1989), but on 23 July 2003 at the conclusion of the hunting season, the plaintiff left the farm for a vacation with friends in Norway and upon her return during August 2003, she settled in Cape Town. They have since lived apart and the evidence shows that the marriage has broken down irretrievably.

[6] The parties have one child, a son Charl James, who is known as James and who was born 24 February 1987. He is now in his final year at school at Union High in Graaff Reinet, where he is a full time boarder. The parties agree that they should have joint custody of James and that the defendant shall primarily be responsible for the maintenance of James. James sees both his parents during the school vacations, but tends, because of the distances involved, to spend weekends with the defendant on the farm. The parties have the best interest of James at heart and it is clear that despite their other disputes, they will be able to communicate sensibly with regard to issues of joint custody. The plaintiff accepts that she should bear the costs of James when he is with her during vacations. In the circumstances, it is appropriate to make orders in terms of prayers (b) and (c) of defendant's counterclaim, as amended.

[7] The principal disputes in this matter concern the plaintiff's claim for personal maintenance and her claim under section 7(3) of the Divorce Act, no 70 of 1979. In respect of the latter, the plaintiff seeks an order declaring the assets of the trust to be deemed to be part of the defendant's estate for the purposes of section 7(3) of the Divorce Act and that the defendant transfer 40% of the net assets of his estate, so constituted, to the plaintiff.

[8] The issues were further limited when the defendant conceded during the course of his evidence that the plaintiff is entitled to rehabilitative maintenance. He now asks for an order that he pay rehabilitation maintenance to the Plaintiff at the rate of R4 500,00 per month for a period of 5 (five) years, the death of the plaintiff's mother
(Mrs Ethel Wendy Jackson, who was born on 23 August 1923 and is now 81 years old) or the plaintiff's remarriage, whichever of the three events may first occur. The Plaintiff, however, persists with her claim for payment of maintenance in the sum of R12 500,00 per month together with certain further payments in regard to medical expenses and the like, until her death of remarriage.

[9] The parties are both from karoo farming stock. They grew up in adjoining farms in the Beaufort West district, some 70 kilometres from that town.

[10] The plaintiff was born on 5 March 1955. She was one of 5 daughters, one of whom has since died, and one brother. She grew up with her family on the farm Bakensrug which belonged to her late father Julius Ronald Jackson, who died on 23 October 2001. She first attended boarding school in Beaufort West and from standard six attended Rustenburg School in Cape Town where she matriculated at the end of 1972. She thereafter obtained a pre-primary teaching diploma at Barclay House College, Cape Town. During 1975, at the age of 20 and while she was in her third year of study, the plaintiff married Simon Burrow. After graduating, she taught for two years at a nursery school in Cape Town whereafter she and Simon Burrow relocated to live on and farm one of her father's other farms, Brakfontein in the Victoria West district. They lived on Brakfontein for approximately three years. The plaintiff and Simon Burrow have two sons, Shaun Burrow who was born during 1979 and Michael-Ross Burrow who was born on 11 March 1982.

[11 ] Plaintiff and Simon Burrow were divorced during 1982 shortly after the birth of Michael-Ross and the Plaintiff, who was awarded custody of their two sons, relocated to Bakensrug. She and the defendant thereafter started dating and soon got married on 4 February 1983.

[12] The Defendant who was born on 28 August 1953, matriculated a year before the Plaintiff did, in 1971 form Union High in Graaff Reinet and thereafter did 12 months military service. During 1973 he attended two farming related courses in wool and mechanics. He commenced farming with his father on Juriesfontein in 1974; The defendant's father died on 12 June 1981 and he inherited Juriesfontein together with the livestock and implements on the farm, subject, however to the life long usufruct over the land which was registered in favour of his mother Mrs Martha Petronella Pienaar (who was born on 30 January 1920 and is now 85 years old). The defendant continued to live on Juriesfontein with his mother until his marriage to the plaintiff. Shortly before the marriage, his mother moved to live in Beaufort West where she rented a flat.

[13] After their marriage in 1983, the parties commenced living together on Juriesfontein with Shaun and Michael-Ross. The plaintiff's maintenance for herself from Simon Burrow fell away on her marriage to defendant. Simon Burrow remained liable for the maintenance of Shuan and Michael-Ross, but plaintiff had problems to obtain regular payments of maintenance from him. It is common cause that the defendant soon formed and thereafter continued to have a good relationship with the plaintiff's two sons and that he was prepared to adopt them as his sons. While the adoption did not take place, the defendant did over the years look after them and did contribute to their maintenance

MAINTENANCE FOR THE PLAINTIFF

[14] Section 7 (2) of the Divorce Act, confers a 'very wide discretion'  upon a court to make a maintenance order which it finds just, having regard to the following factors:
a.  The existing and prospective means of each of the parties;
b.  the respective earning capacities of the parties;
c.  the financial needs and obligations of the parties;
d.  the age of each of the parties;
e.  the duration of the marriage;
f .   the standard of living of the parties prior to the divorce;
g.  the conduct of the parties in so far as it may be relevant to
the break-down of the marriage; 
h.  any redistribution order made in terms of section 7 (3) of
the Divorce Act; and 
I.   any other factor which in the opinion of the court should
be taken into account.

The existing and prospective means of each of the parties

[15] Apart from the evidence of the plaintiff and the defendant in regard to the parties' respective means and income, the plaintiff called a chartered accountant, Mr Colin Shelley, as an expert witness. An Attorney, Mr Landman, gave expert evidence on the value of Juriesfontein. Mnr Shelley and Mr Augustyn, an accountant on behalf of defendant came to an agreement in regard to certain issues. The agreement is reflected in Expert Bundle pages 191A-E and Mr Shelley was recalled to give evidence in regard thereto. Mr Augustyn did not give evidence.

[16] There is a dispute regarding the manner in which the plaintiff's assets and liabilities should be determined and what the amounts involved should be. The dispute largely concerns the plaintiff's position as a beneficiary in two trusts and her 21% share in a closed corporation, JR Jackson CC and her 10,5% share in the Bakensrug Farm partnership.
This partnership between JR Jackson CC and Roland du Toit, the son of one of the plaintiff's sisters, commenced in 1996 when the plaintiff's father retired and was formalised in a written partnership agreement during October 1999. When her father died in 2001, the plaintiff inherited her interest in the CC and her share in the partnership.

'for as long as it is mutually satisfactory to the capital beneficiaries of this Trust'

and in a later codicil, the testator added that
'It is my wish that the partnership shall continue for a period of at least five years after the death of myself and my wife ETHEL WENDY JACKSON'

The testator further provided that the net income of the trust be paid to his wife during her lifetime and thereafter to the capital beneficiaries. In addition it is stipulated that the immovable property may, subject to the widow's veto, be sold during the lifetime of his wife by majority decision of the capital beneficiaries. After her death, the trust may be terminated by the sale of the immovable property agreed to by majority decision of the capital beneficiaries.

[18] In my view the evidence establishes that it is extremely unlikely that the J R Jackson Testamentary Trust will be terminated before the death of the plaintiff's mother. Even after her death, it is far from clear what will happen and it is possible, perhaps probable, that the trust will continue for at least another five years to accord with the testator's wish expressed in the codicil referred to earlier.

[21] I agree with the contention on behalf of the plaintiff that the plaintiff's interest as beneficiary in the J R Jackson Testamentary Trust (the owner of Bakensrug and Blinkfontein) and the JR Jackson Family Trust (the owner of the Fish Hoek property currently occupied by the plaintiff's mother) should be excluded as current assets. The fact that the plaintiff is a beneficiary in both these trusts, however, remains a factor to be taken into account when the amount and duration of any maintenance order is considered. The plaintiff's current assets and liabilities as they appear from the agreement reached, and where not agreed, the evidence, is as follows:

ASSETS
Dwelling - 3A Pearson Park, Kenilworth				R730 000
Household and personal effects 

JR Jackson CC (21% member's 
interest and net loan claims)				170 317
Ronald Jackson Family Trust (loan account) 		8  150
FNB Credit card						1   944

LIABILITIES

Loan EW Jackson (Mother)					30   420
Loan Jenna Trust						127   050

[22] The defendant's assets were largely agreed between the parties, the only items in dispute being the disputed investment with Oval Investments in the amount of 308 000,00 and the value of the defendant's livestock and the game on Juriesfontein. As regards the defendant's liabilities, there are a number of disputed items. These are the defendant's indebtedness to the plaintiff, a loan from Michael-Ross in respect of half of the Lloyds account, the defendant's liability for deferred tax and unpaid legal costs. In my view, the defendant's assets can fairly be stated as follows

ASSETS
Mohair chip (2004) 					R138 600
Lloyds TSB Account 					2 514

Jenna Trust (loan account)				25 000
C de V Pienaar Trust (loan account)		5 000

LIABILITIES

The respective earning capacities of the parties.

[25] Apart from the two years that she worked as a nursery school teacher in the 1977 and 1978, the plaintiff has not been in full time formal employment. From approximately 1990 to 2003, when she left Juriesfontein, she ran a guesthouse on the farm and also for a time in Beaufort West (Ellwood). She also did the catering for the hunting groups that visited Juriesfontein during the winter months. For the rest, she was a farmer's wife on a karoo farm. She testified that while she would prefer to work, she will not be able to cope with the demands of formal employment. She is currently on medication to keep her condition stable. Nevertheless, during the time the plaintiff spent in the witness box, she exhibited noticeable signs of becoming anxious, over excited and distracted and she appeared at times to be unable to restrain the flow of thoughts passing through her mind. Dr Fay Thornley, a psychiatrist and the clinical psychologists messers van Wyk and Kahn who had all examined the plaintiff, drew up a minute pursuant to their meeting on 31 January 2005 wherein they stated their agreement regarding the plaintiff's mental state, as follows:
1.	She suffers from Bipolar disorder of long standing.
2. Her prognosis is not good, but with optimal psychotropic medication she could be more controlled, stable, independent and able to conduct her own life.

[26] The defendant testified that in his view and given the ability she had shown when they were living together, the plaintiff can work to support herself and that she will do so in due course. I do not think that the defendant has a proper understanding and insight into the plaintiff's mental state. I consequently accept the view of the mental health experts in regard to her ability to work at present. The plaintiff testified to an understanding of and insight into her condition. I nevertheless agree with the submission made by Mr Gamble on behalf of the plaintiff, that at this stage her employment prospects are too uncertain to attribute any earning capacity to her. The only income she does have is.the approximately R 3000,00 per month she receives from the Bakensrug farming partnership.

[28] On 1 January 2005 the plaintiff concluded a written lease agreement in terms whereof he sub-let Juriesfontein for three years (with an option to renew for a further 3 years) to his older sister Mrs Valerie van Zyl. She is a teacher in de Aar which is situated about 200 kilometres from Juriesfontein. Her husband farms in the district of de Aar. The defendant testified that he concluded the lease after he experienced headaches during the course of 2004 and he had taken advice from his attorney in Beaufort West. His general practitioner told him that the headaches were probably stress related and prescribed medication which he has found affected his ability to think and act. He concluded that it would be best if he sub-let the farm

None of the defendant's sister, his attorney or his general practitioner gave evidence. The defendant continues to live on the farm and his sister, with the assistance of the farm manager on Juriesfontein, Mr Jan Barbers, is purportedly carrying on the farming operations, from de Aar. The lease is at a rental of R216 000,00 per year but is terminable on one months notice by either side. Mr Gamble argued that the sub-lease is a sham and is no more than an attempt by the defendant to limit his income for the purposes of this litigation. He pointed out that in May 2004 the defendant applied to his bank for an increase in his overdraft to R80 000,00. The internal bank report recommending the increase of R 30 000,00, contains the responsible bank official's statement that the increase was sought

In giving the background to the request, the official stated:

The divorce trial was set down for hearing during November 2004, but was postponed due to the plaintiff's mental health at the time.

[29] It appears to me that the conclusion of the lease was a desperate stratagem resorted to by the defendant to avoid any order which could jeopardise the future of his farming enterprise on Juriesfontein. At times the defendant was clearly in agony in the witness box at the mere thought that he might loose Juriesfontein for future generations. I have little doubt, given the kind of person he is and his close relationship with the farm and its well being, that the lease will be terminated and that he will resume full control over the farm as soon as the these proceedings have come to a conclusion. In saying all this, I do not intend to convey that the defendant is a devious person. He obviously received advice and resorted to these measures in a desperate attempt to ward off what he clearly perceived to be a threat to his position as custodian of Juriesfontein for future generations. It does mean, in my view, that the defendant's ability to pay maintenance must not be judged solely on the basis of his income as lessor. The defendant is clearly in a position to pay maintenance and has in fact, as indicated earlier, in effect conceded during the course of his evidence that he is able to do so. The only real issues are the amount and the period of such maintenance.

[30] It is not possible on the evidence to establish clearly and exactly what the defendant's earnings as a farmer has been. Mnr Gamble has prepared a summary in the form of a table of the defendant's turnover and taxable income over the tax years 1999 to 2004:
Tax Year (28 Feb)			Turnover			Net Income
1999 (Exhibit C4)			276 772			(2 467)
2000					297 675			33 208

2002					483 194			196 436
2003 (Exhibit C44)			712 660			337 205
2004					426 048			64 853

[31] It is correct, as Mr Gamble has pointed out, that not only was the substantial income of up to R80 000,00 per year derived from hunting not reported or underreported, but also that by the very nature of a farming enterprise, a substantial portion of personal expenses can be and are in practice reflected as farming expenses. Mr Shelley has attempted to determine the defendant's income by way of reconstructing his income, taking into account amounts not disclosed, as follows:

[32] Mr Gamble has suggested that the following is a fair statement if the defendant's income and expenses as at 30 June 2005:

INCOME
Land Bank Forced Stock Deposit					R100 362
Rental for farm							216 000

EXPENSES

[33] In my view it is of little value to debate the various figures given. Mr Gamble has suggested that having regard to the defendant's income and expenditure properly adjusted, he has an amount of R 16 344,00 per month over to allocate to the plaintiff's maintenance. I do not think that it has been shown that the defendant would have such amount available on a consistent basis. The defendant is also responsible for the maintenance of his mother and James. The defendant is clearly a prudent and responsible entrepreneur and in the exercise of the wide discretion given to the court under section 7 (2) of the Divorce Act, I have to arrive at a figure which I consider just, having regard to the relevant circumstances.

The financial needs and obligations of the parties.

[34] The plaintiff testified to her monthly expenses as is reflected in a document which is part of the papers (A 473-4). Some of these figures were conceded in cross examination by Mr Smith on the defendant's behalf while others were disputed. During argument some of these claims were further reduced. The amount now claimed by the plaintiff is Rl 4 085,00, which is arrived at as follows:

House contents and motor vehicle			500.00

crockery, cutlery, linen, computer expenses, garden, curtains, carpets

Licence 							40.00
Parking 							150.00 
Petrol and oil 						700.00 
Provision for replacement of tyres every two years 	 100.00
Servicing and repairs 					400.00 
AA Membership						40.00 

14.     Pocket money (incidentals, yoga, milk and bread, etc)   500.00

25.	

The age of each of the parties.

[35] The plaintiff turned 50 on 5 March this year and the defendant turns 52 on 28 August later this year.

The duration of the marriage.

[36] The parties have been married for 22 years and separated on 23 July 2003, after 20 years of marriage. They have now lived apart for 2 years.

The standard of living of the parties prior to the divorce.

[37] The parties enjoyed a comfortable lifestyle. Neither appear to have extravagant tastes and the defendant is obviously careful with his money and was not likely to spend it on luxuries. They clearly did not want for any necessities of life. The photographs which form part of attorney Landman's expert report show that the farm and farm buildings to be well kept and the farm house and surroundings to be very pleasant and comfortable. The plaintiff travelled overseas more than once, making use of money saved from income generated by accommodation and catering for the hunters. Defendant has also travelled overseas and so has their son.

The conduct of the parties in relation to the breakdown of the marriage
[38] In my view this is a neutral factor. The plaintiff was clearly in some respects a difficult and trying person to live with. It is clear that the defendant considers himself hard done by in the sense that he was not, in his view, responsible for the break-up. However, this has a lot to do with the disorder the plaintiff suffers from which initially went undiagnosed and was probably never fully understood by both of them while they were living together.

An order made under section 7 (3) of the Divorce Act

[39] One of the ways in which an order under section 7 (3) would be relevant to the just determination of a maintenance for the plaintiff would be if she would as result of such order be able, or partly able, to maintain herself. As will be seen • hereunder, such an order under section 7 (3) should in my view be made and the defendant be given an opportunity to pay off the amount to be paid in terms of such order. This, together with the other factors to which I refer hereunder, will result in a 'clean break' being achieved, albeit, after the elapse of some time. In my view this is a case where in due course there should be a complete termination of the financial dependence of the plaintiff on the defendant. Sections 7 (2) and (3) allows the court to take

[40] I came to this conclusion after having considered the desirability of making only a redistribution order and awarding no maintenance. I decided to award both but nevertheless to effect a clean break in due course. This is in my view a case where the facts (the financial position of the parties which includes the benefits the plaintiff will derive in due course from her position as beneficiary in the two trusts, their respective means, obligations and needs, and other relevant factors) do allow justice to be done between the parties by effecting a final termination of the financial dependence of the plaintiff on the defendant.

Any other factor which in the opinion of the court should be taken Into account.

PLAINTIFF'S CLAIM UNDER SECTION 7 (3) OF THE DIVORCE ACT

[43] The principal asset which the defendant has brought to the marriage is the farm Juriesfontein, which he inherited from his father. This is also the principal asset in respect to which the plaintiff has contributed to the maintenance of and the increase of the defendant's assets. Mr Landman has valued Juriesfontein as at October 2004 at R 750,00 per hectare, which amounts to R 7 366M. Mr Landman testified and was cross examined as to his knowledge and expertise and the method of valuation adopted by him. In my view, the evidence shows him to be competent and adequately qualified to express an expert opinion on the value of farm land in the area concerned. He testified fully to the facts on which he based his opinion and made use of an acceptable method, that of comparing recent sale of comparable land in the same area.

[45] An order under section 7(3) may only be made as is provided in section 7(4), that is, if the

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 of increase of the estate of the other party during the subsistence of the marriage, either by way of rendering services, the saving of expenses which would have otherwise have been incurred, or in any other way

Plaintiff's direct and indirect contribution towards the maintenance and increase in the estate of the defendant

[48] In all the circumstances, a just and equitable distribution would be for the defendant to pay the plaintiff an amount of R500 000,00. This will amount to a distribution of less than 10 % of the defendant's assets (which includes, for purposes of the order, Juriesfontein).

[50]   In the result, the following orders are made:
a)	A degree of divorce.

(i) All his reasonable medical, dental, chiropractic, hospital, orthodontic, pharmaceutical (on prescription), ophthalmologic (including spectacles and/or contact lenses) and related expenses during the subsistence of the maintenance obligations;

d) An order directing the First Defendant to maintain the plaintiff as set out below, from 1 August 2005, for a period of 5 (five) years, her death or remarriage, whichever event shall first occur:

(ii) By paying the cost of ail reasonable medical, dental, surgical, hospital, orthodontic and ophthalmologic treatment required by the Defendant, including any sums payable to a physiotherapist, occupational therapist, practitioner of holistic medicine, psychiatrist, psychologist and chiropractor, as well as the cost of prescribed medication and the provision where necessary of spectacles and/or contract lenses, to the extent that the said costs are not covered by the plaintiff's current medical aid scheme.

e) An order in terms whereof the maintenance payable by the First Defendant in terms of payers (d) above shall escalate on each anniversary of the granting of a decree of divorce in accordance with the rise which has occurred during the preceding year in the weighted average of the consumer price index for the middle income group as notified by the Central Statistics Bureau from time to time.

i)  Costs of suit, such cost to include the qualifying expenses of: