Forfeiture counterclaim unsuccessful as husband fails to establish specific benefits

August 1st, 2023
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PMM v TNM and Others (FB) (unreported case no 282/2021, 22-6-2023) (Loubser J)

The Free State Division of the High Court in Bloemfontein in the PMM v TNM case had to look at the question of whether the first defendant in the matter had managed to establish the specific benefits of the marriage in community of property, in order to enable the court to decide whether the plaintiff will be unduly benefited if a forfeiture order is not made. Section 9(1) of the Divorce Act 70 of 1979 provides that:

‘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.’

The plaintiff, Mrs PMM, claimed a decree of divorce and division of the joint estate, including the pension funds held with the South African Local Authorities Pension Fund (fourth defendant), from her husband, the first defendant. The second defendant is the purported new wife of the first defendant. The High Court said that the matter initially seemed to be quite straight-forward, but it soon appeared to be more complicated when the first defendant filed a counterclaim to the plaintiff’s summons, claiming an order for forfeiture of patrimonial benefits against the plaintiff. During the course of the trial, four witnesses testified under oath, including the plaintiff and the first defendant.

The first defendant had to leave the plaintiff and their three daughters at his parental home in Sterkspruit while he went to work on the mines at Orkney. In 1995, he left the mines to return to Sterkspruit. Around 1998, the plaintiff made her way to Bloemfontein to find employment, leaving the children and the first defendant behind in Sterkspruit with her mother-in-law. Not long thereafter the first defendant also moved to Bloemfontein, where he eventually found employment. The High Court pointed out that the marriage relationship was not destined to survive such adverse circumstances, and for the next 22 years the plaintiff and the first defendant lived in Bloemfontein, but not under the same roof. They lived completely separated, as the children grew up, they one by one also came to Bloemfontein, where they lived with their father.

The High Court said that since the first defendant carried the onus to prove that a forfeiture order should be made, he was the first witness to testify. He testified that he and the plaintiff became husband and wife in a traditional marriage ceremony in 1980. He added that when they came back from the mines in 1995, he bought a vehicle to transport people. The plaintiff was unemployed. And when he returned home in 1998, he found that the plaintiff had left. He did not know where she had gone. She left the children behind with his mother. They were in school. The next year he moved to Bloemfontein, where he found employment as a driver with the municipality. According to him, he saw the plaintiff again for the first time at court after all the years. The first defendant went on retirement at the municipality in 2021.

The High Court pointed out that in cross-examination the first defendant testified that his assets consist of his home. He obtained his pension money in 2021. That the plaintiff never contributed to the upbringing of the children. The first defendant also denied that the plaintiff helped him to find employment in Bloemfontein, or that she had visited the children from time to time. However, in her testimony, the plaintiff testified that she never deserted the first defendant and the children. According to the plaintiff, she came to Bloemfontein to find employment because the first defendant failed to provide adequately for her and the children. She added that in Bloemfontein she found employment as a domestic worker with Mr S, who is a Chief Executive Officer at the ‘Glaspaleis’, meaning the municipality. The plaintiff has her own quarters on the premises of Mr S, where she lives. She denied that she had ever deserted the children. The plaintiff said she had contributed funds and clothes for the children and for the first defendant’s mother through the years. She earns R 3 500 per month and through the assistance of Mr S, she obtained employment for the first defendant at the municipal library as a driver.

The High Court added that the plaintiff said the first defendant a number of years ago acquired a house in JB Mafora outside Bloemfontein, where he later lived with the children. Where the plaintiff regularly went to visit the children. Since 2018, there was no longer any relationship between her and the first defendant, and he married again in 2020. However, the plaintiff still visited the children at JB Mafora, and always took groceries for the children, and even contributed to the building of the house in JB Mafora by cooking food for the builders and providing them water.

The two other witnesses where the plaintiff and first defendant’s two daughters who testified that their mother was present in their lives and who left for Bloemfontein to seek employment and when they moved to JB Mafora to live with the first defendant, the plaintiff came to visit them every holiday and even bought them school uniforms, clothes, and food.

The High Court said that through the years, the court has pronounced itself in clear terms how the provisions of s 9(1) should be approached and applied. The High Court added that as early as 1989 the Cape Provincial Division of the High Court pointed out in Engelbrecht v Engelbrecht 1989 (1) SA 597 (C) that joint ownership of another party’s property is a right, which each of the spouses acquires on concluding a marriage in community of property. Unless the parties make precisely equal contributions, the one that contributed less shall on dissolution of the marriage be benefited above the other if forfeiture is ordered. The Cape Provisional Division of the High Court went on and stated that s 9 does not give the greater contributor the opportunity to complain about this. He can only complain if the benefit was undue. In that judgment the court went on to stated that, unless it is proved what the nature and extent of the benefit was, the court cannot decide if the benefit was undue or not. The High Court said this approach was endorsed by the Supreme Court of Appeal and followed by the courts of the Free State Division of the High Courts on several occasions.

The High Court said that the first defendant failed to establish the specific benefits. That all that he could say, was that his home represented an asset in the marriage in community of property, but he did not give any evidence as to the value of that home. He also did not provide any information regarding the value of his pension fund, the amount that was paid out to him from the fund in 2021, if any, and the amount of the funds that were still available in the pension fund. The High Court pointed out that it was completely in the dark as far as the specifics of the benefits in the marriage in community of property is concerned. The High Court added that it was not able to establish whether the plaintiff will be unduly benefited if an order of forfeiture is not granted against her. The High Court said the counterclaim for forfeiture, therefore, cannot succeed.

The High Court further said on the other hand, there can be no doubt that a decree of divorce should be granted, as prayed by the plaintiff. The first defendant did not take issue with this aspect of the plaintiff’s claim. The High Court said it found no reason why the remaining prayers contained in the summons should not be granted.

The High Court made the following orders:

‘1. The plaintiff’s customary marriage to the 1st defendant on or about 6 December 1980, is declared a valid marriage in terms of the Recognition of Customary Marriages Act 120 of 1998.

  1. The 3rd defendant [Department of Home Affairs] is ordered to register the marriage between the plaintiff and the 1st defendant as such.
  2. The marriage entered into between the 1st and 2nd defendants on 12 March 2020 is declared null and void ab initio, and the 3rd defendant is ordered to remove the registration of such marriage from its records.
  3. A decree of divorce in the marriage between the plaintiff and the 1st defendant is hereby granted.
  4. A division of the joint estate of the plaintiff and the 1st defendant is hereby ordered, which joint estate includes the 1st defendant’s pension funds held with the 4th defendant.
  5. The 1st defendant is ordered to pay the plaintiff’s costs in the main action.
  6. The 1st defendant’s counterclaim is dismissed with costs.’

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2023 (Aug) DR 31.

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