M v M (12436/15) [2017] ZAGPPHC 1109 (1 December 2017)

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

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 12436/15

1/12/17

(1) NOT REPORTABLE.

(2) NOT OF INTEREST TO OTHER JUDGES.

(3) REVISED

In the matter between:

M

Plaintiff

and

M

Defendant

JUDGMENT

1. The plaintiff instituted a divorce action against the defendant during February 2015 claiming a decree of divorce and forfeiture of certain specific benefits of the marriage in community of property in favour of the plaintiff. These benefits were the following:

(a) the immovable property situated in L[….], which is registered in the name of the plaintiff; (b) the plaintiff's interest in the M[….] Pension Fund; (c) a VW Jetta motor vehicle; (d) a Toyota Tazz motor vehicle; and (e) all movable household assets in and around the aforesaid immovable property. An order for costs was also sought which claim was abandoned during the trial.

2. The defendant opposed the action and instituted a counterclaim claiming a decree of divorce; an equal division of the joint estate; spousal maintenance in the amount of R1500,00 per month for a period of 24 months; 50% of the plaintiff's pension fund interest at the M[….] Pension Fund; and costs of suit. The claim for spousal maintenance

was abandoned during the trial.

3. The only issue in dispute which remained in the trial before this court was whether a forfeiture order should be granted in respect of the defendant's benefits arising from the marriage in community of property and more particularly to the extent claimed by the plaintiff in his particulars of claim.

4. It was common cause between the parties that in order to adjudicate the aforesaid dispute between the parties, section 9 (1) of the Divorce Act, 70 of 1979, has to be applied. This section provides as follows:

"9 Forfeiture of patrimonial benefits of marriage

(1) When a decree of divorce is granted on the ground of the irretrievable break-down of a marriage the court may make an 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 break-down thereof and any substantial misconduct on the part of either of 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."

5. The parties were also in agreement that the three factors mentioned in this section should not be considered cumulatively and that the test to be applied was correctly stated in the matter of H Botha v GJ Botha [2006] SCA 7 (RSA) where the court confirmed the approach followed by the court in Wijker v Wijker 1993 (4) SA 720 (A) at 727E-F which reads as follows:

"It is obvious from the wording of the section that the first step is to determine whether or not the party against whom the order is sought will in fact be benefited. That will be purely a factual issue. Once that has been established the trial Court must

determine, having regard to the factors mentioned in the section, whether or not that party will in relation to the other be unduly

benefited if a forfeiture order is not made. Although the second determination is a value judgment, it is made by the trial Court

after having considered the facts falling within the compass of the three factors mentioned in the section."

6. Consequently, in order to make the value judgement as to whether the defendant would be unduly benefited if a forfeiture order is not made, this court has to have regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties.

7. In paragraph 6 of his particulars of claim the plaintiff alleged that the marriage relationship between him and the defendant broke down irretrievably for the following reasons:

"6.1 Unbeknown to the plaintiff, the defendant was HIV positive when the parties got married, the defendant knew about her HIV-positive status and did not disclose such status to the plaintiff. If the plaintiff

was aware of her HIV-positive status he would not have married the defendant;

6.2 The parties separated during October 2013, no longer endure conjugal

rights and had not lived together as husband and wife since date of separation;

6.3 Because of the above, the plaintiff has lost his love and affection

for the defendant and does not want to proceed with the marriage relationship."

8. In her counterclaim the defendant attributed the breakdown of the marriage to the following factors:

"1. The plaintiff has infected the defendant with an HIV virus knowingly as his previous girlfriend left his place when she was ill;

2. The plaintiffs reaction after I discovered that I was infected with HIV virus was that he was not shocked but he assured me that there are people he knew who lived with the virus, which means that he knowingly infected me;

3. The parties are no longer compatible to each other;

4. The defendant has lost trust in the plaintiff. As a result of the above the defendant has lost love and affection towards the plaintiff."

9. It is necessary to refer to certain of the more relevant evidence presented by the parties who both testified. According to the pleadings the parties were married to each other in community of property in P[….] on 20 March 2013. At the time the plaintiff was 37 years of age and the defendant was 28 years of age. There was some confusion during the trial as to when exactly the parties were married. The parties went through a religious ceremony on 23 December 2012 in P[….] which the defendant, at times, referred to as the date on which they were married. It is common cause that the marriage was only registered on 20 March 2013 in P[…]. No marriage register was signed on 23 December 2012. It is, however, not necessary that this issue be finally resolved at this point. The marriage certificate presented in evidence at the trial confirmed the date of marriage to be 20 March 2013.

10. The plaintiff is the Functional Head: Corporate and Shared Services in the M [….] and is presently 42 years of age. He has obtained a BTech degree in P[….]and has been in the employ of the M[….] since 2004.

11. The plaintiff and the defendant met each other in the beginning of 2011 through a cousin of the plaintiff. At the time the defendant was working in P[….] and initially they would see each other once a month or once every

two months. During 2012 the relationship got more serious. The parties, however, didn't have a sexual relationship for the reason

that the defendant held the view that her religion would not allow such conduct and because she did not want to fall pregnant before

being married. The plaintiff respected the defendant's views and religious beliefs and paid lobola during September 2012 in anticipation of a marriage with the defendant. A wedding ceremony in the defendant's church was arranged and held on 23 December 2012. Until that date the defendant at all times resided at the home of her parents.

12. The plaintiff testified that approximately three weeks prior to the wedding ceremony he went for an HIV test, the results of which turned out to be negative. He shared the results with the defendant and requested her to have

herself tested for HIV and to produce the test results to him. The defendant indicated that her pastor would be counselling them prior to the wedding ceremony and that the pastor would produce the test results. The plaintiff testified that the counselling took place but that the pastor did not conduct any testing and neither did the defendant produce test results in respect of her HIV status. This bothered him but considering the fact that she was "very Christian orientated" and her views on sexual conduct, and the fact that she had to his knowledge never been seriously ill, he thought that he should not press the issue and should continue with the wedding plans.

13. After the proceedings on 23 December 2012 the parties remained at the plaintiffs parental home and moved to his house in P[….] early in January 2013.

14. According to the plaintiff the defendant complained of stomach-aches and a running stomach on the morning of 24 December 2012. From that time onwards the defendant became sick at rather regular intervals. He also noticed that at times she ate very little. He said that there were times when the defendant was completely normal and that at such times

they would travel and visit their family.

15. The plaintiff testified that from January 2013, after they'd moved to P[….] he took care of her when she was sick and took her from one doctor to the other. According to him the doctors could not tell him what she was

suffering from. One doctor told him that she was suffering from irritable bowel syndrome. As time went by her physical state deteriorated and often when they went shopping or to a restaurant, the defendant would say that she wasn't feeling well and that she wanted to go home. According to the plaintiff the defendant would be well on one day and on the next would suffer from diarrhoea and other

symptoms.

16. The plaintiff testified that their intimate life suffered and that they very seldom had sexual intercourse. He believed that this was due to the defendant's physical state. They have not had sexual· intercourse after

May 2013. This was mainly due to the illness of the defendant.

17. Prior to the marriage the defendant worked for the D[….] on a contract basis. The contract had expired during approximately April 2012 and since then she had not been employed. During their time in P[….] the defendant was also not employed. She was physically unable to look for work.

18. According to the plaintiff he treated and looked after the defendant and did not want to worry the family. However, during April 2013 he called his family and told them that he was starting to get worried about the physical

condition of the defendant. Her condition weighed very heavily on him. He testified that he had to work very hard at the m[….]

and had big responsibilities and was also studying but that he nevertheless took care of and treated the defendant. Some days he

would arrive at home finding that she had prepared food but on other days she would still be in bed. Mentally and physically he also suffered. One of the sisters came to P[….] to assist with the medication of the defendant. Her parents also came and prayed for her. On two occasions the defendant's mother came and took her to P[….]. At some point they considered that a cousin of the defendant should come and stay with them to assist and to encourage her to eat.

19. According to the plaintiff things got worse in the months to come and during July to August 2013 the defendant landed up in the ICU of a hospital due to pneumonia she suffered from. From there, according to the plaintiff, things went downhill and the defendant remained in bed most of the time.

20. On 13 October 2013 the plaintiff decided to take the defendant to his parental home in P[….]

so that his family could assist with taking care of the defendant. He remained in P[….] where he studied and worked full-time.

21. Soon after he had taken the defendant to P[….] her parents fetched her from his parental home without informing him or his father. He said that the defendant told him that that was done because they did not agree on the type of treatment that she should receive. She also apologised to the plaintiff. The defendant's mother refused to let the defendant

return. The plaintiff was quite upset that the defendant's parents had taken her away from his parental home and it seems that he was quite frustrated and worried because the cause of her condition could not be established.

22. During the latter part of November 2013 the plaintiff became quite upset because the defendant would not return to his parental home or to him. He informed the defendant that if she had not returned by the 23rd December, which was one year after their wedding ceremony, he would commence divorce proceedings. From that moment the defendant started to communicate with him again and sent him a text message informing him that there is something that they should discuss before she comes back to him. The plaintiff informed her that he would come to P[….] to discuss whatever she wanted to discuss.

23. However, on 22 December 2013 she sent a text message to the plaintiff informing him that she was HIV-positive. She told him that she had established this already in October 2013. The plaintiff said that the news was unexpected and he went to the defendant at her parental home. He said that she was extremely thin and really very sick. He then realised that her periodic bouts of illness in the past and the symptoms she had presented with was because she had been suffering from Aids all along.

24. He testified that the defendant confronted him and wanted to know with whom he had slept. She was accusing him of infecting her with the virus and told him to go and have himself tested. According to the plaintiff he was extremely angry at the defendant's accusations. The defendant sent him a text message again accusing him of infecting her. He decided to have himself tested. He underwent a so-called Rapid Test which turned out to be negative. He sent these results to the defendant.

25. On his arrival back in P[….] during January 2014 the plaintiff conducted his own investigations

and learned from friends of the defendant that she had been sick for a very long time. He also looked at the medical records from the time when the defendant was in P[….] and especially during her stay in the hospital during July 2013 and established that she had been prescribed medication for Aids. According to the plaintiff he realised that the defendant not only knew about her status from October 2013 but at least from July 2013.

26. The plaintiff testified that during February 2014 the defendant indicated that she wanted to fix their relationship. He was extremely upset with her because she had lied to him and had accused him falsely. He called a meeting of their

respective parents where the matter was discussed. The plaintiff testified that what aggrieved him the most was the fact that the

defendant accused him of infecting her with the HIV virus. He then decided that he was not prepared to continue with the marriage based on the lies of the defendant. The parties have thus not been together since 13 October 2013.

27. The plaintiff testified that he was extremely anxious that he had also contracted the disease from the defendant and during June 2014 he went to Lancet Laboratories to have him tested for the HIV virus again. The results from the laboratory dated 24 June 2014, which served as an exhibit before the court, again reflected a negative result. The plaintiff

had himself tested again approximately one month prior to the trial on the advice of his attorney. According to the pathology result of Lancet Laboratories dated 25 October 2017, which served before the court as an exhibit, the plaintiff again tested negative for the HIV virus.

28. Regarding his assets the plaintiff testified that he purchased the immovable property situated at [….] Street, L[….], P[….], during 2006. The value of the house is between R700 000,00 to R800 000,00. The Toyota Tazz 1.3 motor was also purchased during 2006 but had since been sold because of the mechanical problems it presented with.

The VW Jetta 6 Tsi motor vehicle was purchased by him in November 2013. The plaintiffs interest in the M[….] Pension Fund has a value of approximately R800 000,00.

29. According to the plaintiff the defendant had no assets of note and the vehicle she was driving belonged to her mother. The defendant never earned an income during the marriage.

30. The defendant testified that while they were living in P[….] she was fit and there was nothing wrong with her physically. She said that both of them belonged to a running club and ran marathons and also jogged in the streets. She exercised and trained and did all the washing and cooking that was required and visited friends. This evidence was not put to the plaintiff when he testified and his evidence to the contrary was not disputed in any manner or form. During cross-examination she admitted that she became ill with stomach problems during July 2013 and that at the end of July 2013 she went to hospital with pneumonia.

31. The defendant concurred that the plaintiff took her to his parental home in P[….] because she got sick but added that the plaintiff's father took her to a traditional healer who would, however, not touch her as she was

apparently "very powerful" and that the traditional healer said that she did not want to fight with the defendant's angels. Her mother then took her away from the plaintiff's parental home. This evidence was also not put to the plaintiff. The defendant also testified that the plaintiff did not support her after she went to P[….] and accused her mother of being a witch. This evidence was also not put to the plaintiff when he testified.

32. The plaintiff testified that she was unaware of her HIV status. At the end of October she became aware of her HIV status and was too sick to get up from bed. During counselling, so she testified, she was advised that she need not tell the plaintiff of her status over the telephone. She eventually informed him thereof during December 2013 during which conversation he told her that he had friends who had tested positive and who live with the illness. She said that she never hid her HIV status from the plaintiff. She also testified that during December 2013 the plaintiff sent a message saying that he did not want to be married to her any more. This evidence was also not put to the plaintiff when he testified.

33. She confirmed the meeting with their parents but testified that the plaintiff wanted her parents to apologise for removing her without his permission and that he also said that he could not continue with the marriage.

34. The defendant testified that she never accused the plaintiff of infecting her with the HIV virus. This evidence was not put to the plaintiff when he testified nor was it disputed in any manner or form.

35. Regarding the assets which they had the defendant testified that she bought certain smaller items for the house. She further testified that she had since obtained employment and that she is no longer claiming any maintenance from the plaintiff.

36. During cross-examination the defendant testified that prior to the marriage they had sexual intercourse. This was never put to the plaintiff when he testified. She couldn't explain how she contracted the HIV virus and submitted that some people are carriers of the virus but do not present with any symptoms. She couldn't explain why the plaintiff had tested negative on more than one occasion. She said that the plaintiff had himself tested because he knew that he was HIV positive.

37. She also denied that she ever took anti-retrovirals during July 2013 as testified by the plaintiff. This evidence was, however, never disputed when the plaintiff testified.

38. As a witness the plaintiff created a very good impression. His evidence was logical and there were no contradictions or any inherent improbabilities in his version. As indicated above the defendant had in certain important respects a completely different version with which the plaintiff was never confronted when he testified. Furthermore, the defendant's evidence regarding her excellent state of health and the running of marathons, I find totally improbable. Even on her own version she suffered from serious ailments, particularly with respect to her stomach, and also landed in hospital during July 2013. She

also admitted that she was taken to P[….] because she was sick.

39. Regarding the version of the defendant that the main cause of the breakdown of the marriage was because the plaintiff had infected her with the HIV virus, I can come to no other conclusion than that this version is totally unsustainable in the light of the evidence before this court. On the evidence before the court the plaintiff is not HIV positive and could not have infected the defendant.

40. Regarding the allegation in the pleadings on behalf of the plaintiff that the defendant had known about her status but had hidden it from her, I cannot find on the evidence that the defendant had on the probabilities known about her HIV status prior to the marriage. On her own version she knew about her status from October 2013 and according to the evidence of the plaintiff, probably from July 2013. She only informed the plaintiff thereof during the latter part of December 2013.

41. According to the plaintiffs evidence he considered divorcing the defendant when she refused to return to him during the latter part of 2013. The main reason for instituting the divorce and thus for the breakdown in the marriage relationship was, however, the fact that she had accused him of infecting her with the HIV virus. Although the defendant denied

that she accused him of this, I find that on the probabilities she did in fact do so. Her evidence during the trial for all practical

purposes went so far as accusing him of being HIV positive and infecting her with the virus.

42. In deciding the issue of forfeiture of benefits I have to consider the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties.

There was some misconduct on the part of the defendant in that she failed to inform the plaintiff of her HIV status the moment she became aware of her status. The two months which she took to inform the plaintiff, on her own version, could have had very serious repercussions for the reason that she may have infected the plaintiff prior to that and that such a delay could have had serious consequences for himself and possibly for other persons as well. However, this failure may to some extent be ameliorated by the advice given to the defendant.

43. I have already referred to the main cause of the breakdown of the marriage relationship being that of the defendant accusing the plaintiff of infecting her. The accusation was false and the defendant had no reason to accuse the plaintiff of infecting her. The plaintiff had made sure of his HIV status prior to the marriage and informed the defendant thereof. This was obviously a very important aspect for the plaintiff and for that reason he wanted to know the defendant's HIV status prior to the marriage. It is so that he eventually decided to proceed with the wedding without finally obtaining proof of the defendant's status, but it does show that the plaintiff regarded the issue of HIV and AIDS as a very important aspect. Consequently, the fact that the defendant failed to inform him of her status and furthermore to falsely accuse him of having the disease and infecting her, was the main reason for the breakdown in the marriage relationship.

44. Apart from the aforesaid, the third factor mentioned above, namely the duration of the marriage, in my view play a significant and deciding role in deciding the issue of forfeiture. The duration of the marriage must obviously refer to the

beginning of their cohabitation until the parties finally stopped living together. It would be recalled that almost immediately after the plaintiff had taken the defendant to his parental home on 13 October 2013, she was removed by her parents who refused that she should go back to the plaintiff. That was also the defendant's view and it so upset the plaintiff that he considered instituting divorce proceedings. At best for the defendant, the parties had thus been together, whether as husband and wife or not, from the beginning of January 2013 until the middle of October 2013, i.e., for a period of approximately nine and a half months. That, in my view, constitutes a marriage of very short duration.

45. A marriage of such short duration and having regard to the other factors mentioned above, especially the factors giving rise to the breakdown in the marriage, satisfy me that the defendant would be unduly benefitted if an order for forfeiture is not made. In exercising my discretion I consequently find that the defendant would be unduly benefited if an order of forfeiture, as claimed by the plaintiff, is not made.

46. As far as costs are concerned, the plaintiff had indicated that he abandons any claim in regard to costs.

47. In the result of all the aforesaid the following order is made:

1. The marriage between the parties is dissolved.

2. The defendant shall forfeit in favour of the plaintiff the following benefits of the marriage in community of property:

2.1 the immovable property situated at [….] Street, L[….], P[….], which property is registered in the name of the plaintiff;

2.2 the plaintiff's interest in the M[….] Pension Fund (Member number [….]

2.3 the VW Jetta 6 Tsi motor vehicle with registration number CV 68 BR GP;

2.4 the Toyota Tazz 1.3 motor vehicle with registration number [….];

2.5 all movable household assets in and around the immovable property situated at [….] Street, L[….], P[….].

3. Each party shall pay his/her own costs of suit.

C.P. RABIE

JUDGE OF THE HIGH COURT