M.S.L v M.P.C.L (480/2019) [2021] ZAFSHC 298 (22 November 2021)

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,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 480/2019

In the matter between:

M[....] S[....] L[....]

Plaintiff

and

M[....] P[....] C[....] L[....]

Defendant

JUDGMENT BY: C REINDERS, J

HEARD ON: 6 AUGUST 2021

DELIVERED ON: 22 NOVEMBER 2021

[1] On 4 December 1992 the parties pledged their wedding vows to each other, entering into a marriage in community of property. The marriage relationship seemingly turned out to be stormy and acronymous. Plaintiff instituted divorce proceedings in this court on 6 February 2013, claiming inter alia a decree of divorce and division of the joint estate. During August 2020 plaintiff amended his particulars of claim, substituting the claim for division of the joint estate with an order that defendant should forfeit the benefits arising from the marriage in community of property. Plaintiff pleaded these benefits as “the plaintiff’s pension interest in the GEPF” and “the parties’ immovable property(ies)”. The forfeiture claim in respect of the communal home situated at [….], was abandoned at the commencement of the trial. The defendant entered an appearance to defend the action and filed an amended plea together with a counterclaim. In the counterclaim defendant likewise seeks an order for the dissolution of the marriage together with an order for the division of the joint estate and post-divorce spousal maintenance.

[2] It is not in dispute between the parties that the marriage relationship between them had broken down irretrievable and both parties seek the dissolution of the bonds of marriage. At the commencement of the trial I was informed that the issues to be adjudicated by me are:

2.1 the reasons for the said breakdown;

2.2 whether the defendant would be unduly benefitted unless forfeiture in respect of the plaintiff’s pension interest in the Government Employees Pension Fund (GEPF) is ordered; and

2.3 whether the defendant’s claim for spousal maintenance post-divorce should be granted, and if so, the amount and period thereof.

It goes without saying that costs are also in dispute.

[3] In presenting his case the plaintiff took to the stand and called no witnesses. Defendant testified and called her daughter Ms R[....] L[....].

[4] The legal principles applicable to a claim for forfeiture are laid down in section 9(1) of the Divorce Act 70 of 1979, hereinafter "the Act", which provides as follows:

"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".(own emphases)

[5] Counsel for both parties relied on Engelbrecht v Engelbrecht 1989 (1) SA 597 (C) at 601 F-G where the court held, in dealing with factual determination of an order for forfeiture, that:

"Joint ownership of another’s property is a right which each of the spouses acquires on concluding a marriage in community of property. Unless the parties (either before or during the marriage) make precisely equal contributions, the one that contributed less shall on dissolution of the marriage be benefited above the other if forfeiture is not ordered. This is the inevitable consequence of the parties’ matrimonial regime. The legislature (in section 9 of the Divorce Act 70 of 1979) does not give the greater contributor the opportunity to complain about this. He can only complain if the benefit was undue.” (own emphases)

[6] Mr Van der Merwe, appearing on behalf of defendant, in addition placed reliance on Engelbrecht supra at 601 H:

“Unless it is proved (and the burden of proof rests on the party who seeks the forfeiture order) what the nature and extent of the benefit was, the Court cannot decide if the benefit was undue or not. Only if the nature and ambit of the benefit is proved is it necessary to look to the factors which may be brought into consideration in deciding the inequity thereof.” (own emphases)

[7] The proper approach in the determination of whether an order of forfeiture should be made was set out in Wijker v Wijker 1993 (4) SA 720 (A) at 727 D-F. Van Coller, AJA (as he then was) held that “…the first step is to determine whether the party against whom the order of forfeiture is sought will in fact be benefitted. 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 benefitted if a forfeiture order is not made.”

See: JW v SW 2011 (1) SA 545 (GNP)

See also: BM v SM 2020 JDR 0636 (GP) at paras [24-26]

FH v SH 2013 JDR 0956 (Nm)

[8] To substantiate his claim for forfeiture, plaintiff in his amended particulars of claim stated several reasons which coincide with the reasons pleaded for the breakdown of the marriage relationship. During his testimony he indicated the main reason for the forfeiture claim to be the defendant’s alleged betrayal in leading him to believe that he was the biological father of Ms L[....]. According to him the true state of affairs only came to his knowledge in 2012. Unbeknown to him plaintiff had also been receiving maintenance in the amount of R 800-00 monthly from her biological father. The pleadings lack any allegations in respect of the value of the joint estate as a whole, whether it be movables, the values of the immovable property(ies) or the pension fund interest in respect whereof the plaintiff seeks an order for forfeiture.

[9] Plaintiff is 59 years of age. He testified that he had been in the employ of the South African Police force since 1984 until his retirement/resignation as a captain (due to “problems at work”) in January 2020. His discovered salary advice of 2018 indicated that he, at that stage, earned a nett salary of R 20 365-00 monthly, but no recent advices. He is unable to state the increases he received over the years, which would have had an influence on the pension money that he received. According to him the amount of pension money received was roundabout R 5,5 million (before tax deductions). He “withdrew” this amount and had one third thereof paid out to him (approximately R 1,6 million). He deposited the remainder with Sanlam in a product called Glazier Living Annuity. The R 1,6 million so received was spend by him amongst others for tax purposes, legal fees and a municipality account of R 8 000-00. He gave some money to his kids and “spoiled himself with clothes and other things”. At the time of the divorce proceedings he was not a member of GEPF anymore.

[10] Mr Van der Merwe, appearing for the defendant, submitted that in casu, the plaintiff had failed to prove the nature and extent of the alleged benefit at all. To bolster his argument, Mr Van der Merwe argued that the benefit (or the value of the pension fund interest) that the plaintiff wants to be declared forfeited is not the same as at date of the amended particulars of claim. He submitted that, at present, the nature and extent of the benefit is simply unknown. Little is also known about the contributions of the respective parties to other communal assets or the communal estate. Moreover, it could never be seriously disputed that defendant had worked for a lengthy time during the marriage and earning a salary, or that she was taking care of the minor children and contributed to their expenses by buying groceries and the like. According to him a liquidator, upon divorce, should establish who brought in what and values of assets and liabilities of the estate.

[11] Mr Mazibuko, respresenting the plaintiff, however submitted that it remains possible for this court to determine the nature and extent of plaintiff’s claim on the evidence before it. I am unable to agree with him. Having regard to the evidence led by plaintiff to prove that he is entitled to a forfeiture order, I am not persuaded at all that he had discharged the onus of showing factual benefit by defendant if the order is not granted. He failed to lay a proper factual basis on what either of the parties had contributed to the joint estate and what value that contribution amounted to as compared to that of the defendant. In my view failing to have done so, amounts to a failure on the first leg for determination of an undue benefit by defendant which would cause me to exercise my discretion in favour of plaintiff in respect of such an order.

[12] Even if I am wrong in this conclusion, I am in any event not persuaded that forfeiture should be ordered taking into account the factors as I should. The benefit must be undue. The marriage between the parties was of a lengthy duration, spanning short of 30 years at the time of hearing this matter. In respect of the factors that lead to the breakdown of the marriage relationship, it is evident to me from the testimony by the parties that the marriage was riddled with infidelity on both sides. Mr Mazibuko pressed on me to find that plaintiff was an impressive witness who never contradicted himself and gave answers to all questions. I do not share his positive view of plaintiff. Although plaintiff tried his level best to deny infidelity on his side, it is common cause that he had a child, who was born in August 2007, with one Ms S[....]. He fathered another child with her whilst still being married to defendant. Plaintiff accused defendant of having had an adulterous relationship with one Mr W[....]. Although defendant might not have been an exemplary witness, I am unable to reject her evidence in totality. In my view the conduct of both parties led to the irretrievable breakdown of the marriage relationship. Even if I should have found that plaintiff had established on probabilities that he had been unaware of Ms L[....] not being his biological child and that this created substantial misconduct on her party, this factor on its own in my view does not justify a forfeiture order.

See: Engelbrecht supra at 602 J-603A

Accordingly, I conclude that an order for forfeiture is not appropriate in the circumstances.

[13] The defendant claims spousal maintenance in the amount of R 6 000-00 per month until her death or remarriage. Plaintiff had been paying interim maintenance in a monthly amount of R 3 000-00 to Defendant in respect of herself and the parties’ son N[....].

[14] The factors to be considered in the determination of spousal maintenance post-divorce are set out in sec 7(2) of the Act as: the parties’ respective existing and prospective means, earning capacities, financial needs and obligations, ages, standard of living prior to the divorce, duration of the marriage, conduct in as far as it may be relevant to the breakdown of the marriage and any other relevant factor.

[15] The defendant is 50 years of age. It was common cause or not seriously disputed that she had been suffering from mental issues (inter alia major depression) for many years, which even led to her losing her employment at the Deeds Office in 2014. She had not been meaningfully employed since then due to her fragile mental health, but still diligently applied for employment at several employers. In my view defendant must be commended for not merely taking a back seat and expect of plaintiff solely to maintain her. She is an entrepreneur who plants and sells vegetables for an income. This income varies according to the season, with winter months yielding almost no income at all. She estimated the income to be between R2 000 - R2 500 in the prime summer season in January/February. Her only other source of income is sporadic passive dividends from a family business in the Northern Cape which she shares with her siblings, ostensibly in the region of R10 000-00 yearly or twice a year.

[16] In terms of a court order for interim maintenance, plaintiff was awarded R1 000-00 in her personal capacity, and R1 500-00 for the parties’ son N[....] who was at the time a minor. The combined amount was raised with a further R 500-00. Plaintiff testified on her monthly expenses which amounts to R11 068-00, resulting in her having a substantial shortfall. According to her, she is dependent on church and family members for food from time to time.

[17] Plaintiff did not testify on his monthly expenses, save for maintaining N[....] who is still living with defendant, in the amount of R 1 500-00. His monthly income amounts to R14 000-00. I am accordingly unable to determine his ability to pay maintenance. However, the fact that plaintiff tendered to pay rehabilitative maintenance to defendant is in my view indicative thereof that plaintiff realises that defendant has a need in this regard. Plaintiff tendered an amount of R 1 500-00 per month for a period of 12 months. Mr Mazibuko however submitted that such an amount was merely tendered to establish a clean break between the parties.

[18] I am not convinced that payment of R 1 500-00 per month for a period of 12 months constitutes a clean break. Although I intend to order division of the joint estate, I am not convinced that half of the estate would be sufficient to maintain defendant for the remainder of her life. The evidence confirms that plaintiff has maintained defendant until now. In my view this is an appropriate case where I should order a token award of maintenance enabling a maintenance court in the unforseen future to consider, if necessary, a then appropriate amount of maintenance. I intend to order such maintenance to be paid in the amount of R 50-00 monthly.

[19] None of the parties have been completely successful, and in my view an appropriate cost order would be to order each party to pay their own costs.

[20] Bearing in mind the overlapping relief sought in the main claim and the counter-claim, I make the following orders:

20.1 The bonds of marriage between the parties are hereby dissolved.

20.2 Division of the joint estate.

20.3 Plaintiff to pay maintenance in respect of defendant in the amount of R 50-00 per month, the first payment to be made before or on 1 December 2021 and thereafter before or on the first day of each subsequent month.

20.4 Each party to pay his/her own costs.

C. REINDERS, J

On behalf of the plaintiff: Adv M.S. Mazibuko

Instructed by: Mlozana Attorneys

BLOEMFONTEIN

On behalf of the defendant: Adv H.J. van der Merwe

Instructed by: Symington & De Kok Attorneys