Buttner v Buttner

• Jurisdiction: South Africa
• Judge: Scott JA, Lewis JA, Van Heerden JA, Nkabinde AJA and Cachalia AJA
• Judgment Date: 23 September 2005
• Docket Number: 382/04
• Hearing Date: 23 August 2005
• Counsel: E A S Ford for the appellant. M Bartman for the respondent.
• Court: Supreme Court of Appeal

Van Heerden JA:

Introduction F

[1] This appeal concerns, in the main, the issue of redistribution of assets between the parties upon their divorce and the correctness or otherwise of an order for the payment of so-called 'token' maintenance made by the trial Court in favour of the wife. G

[2] The parties were married to each other on 2 July 1977. The proprietary regime of their marriage was governed by an antenuptial contract in the then standard form, excluding community of property, community of profit and loss and thus, by implication, accrual sharing in any form, between them. H

[3] In April 2003, the appellant husband instituted divorce proceedings against the respondent wife in the Cape High Court. He claimed, inter alia, a redistribution order in terms of s 7(3) of the Divorce Act 70 of 1979 (the Act) in respect of the respondent's member's interest in a property-owning close corporation known as Wanderer Night 20 CC. In her counterclaim, the I respondent claimed that she was entitled to half of the net proceeds of the sale of the parties' former matrimonial home in Brisbane (Australia). She alleged that she and the appellant had been the co-owners in equal undivided shares of this property which was registered in their joint names. In the alternative, and in the event of the Court finding that she was not entitled to such proceeds, the respondent J

Van Heerden JA

sought a s 7(3) redistribution order on the basis that the appellant transfer to her half of the value of the assets amassed A by him during the existence of the marriage. She also claimed maintenance for herself until her death or remarriage. In response to this counterclaim, the appellant amended his particulars of claim to the effect that, in the event of the respondent's claim for half of the net proceeds of the Brisbane house succeeding, she should be B ordered, in terms of s 7(3) of the Act, to transfer to him one-half of the value of the assets in her estate.

[4] Prior to the commencement of the trial, the parties agreed that custody of their 18-year-old daughter (Kate) should be awarded to the appellant, with the respondent having reasonable access to her. At that time the appellant was financially supporting both Kate and the C parties' 21-year-old daughter (Amy) and no maintenance order in respect of either daughter was sought by either party. In granting the divorce order, the Court a quo (Thring J) dismissed the appellant's proprietary claims. In respect of the claim in reconvention, the appellant was ordered to pay to the respondent D the amount of R360 000 in respect of her main claim and to contribute to her maintenance at the token rate of R10 per month until her death or remarriage. In addition, Thring J ordered the appellant to pay the costs of the action. This appeal - against the proprietary, maintenance and cost orders made by the Court a quo - is with the leave of that Court. E

The factual background

[5] When the parties were married in 1977, the appellant was employed by Murray & Stewart in Umtata (Transkei) as a trainee quantity surveyor, alternately working for six months of the year and then F studying for six months, his study fees being paid by his employer. The respondent (who has no tertiary education qualifications) was working for Barclays Bank in East London as a teller, but managed to get a transfer to Umtata. In 1978 or 1979, the appellant joined the Durban City Council, also as a trainee quantity surveyor, and the parties moved to Durban. Once again, the respondent succeeded in H getting a transfer to a branch of the bank in Durban.

[6] After the appellant had qualified as a quantity surveyor, he worked for a Durban-based company for about four years, but was transferred to Port Elizabeth. The respondent was again transferred by the bank to Port Elizabeth and the parties moved there together. During the period 1981 to 1984, the appellant worked for two other building companies in Port Elizabeth. The parties built a house in Port Elizabeth, financed by means of their joint savings and a mortgage bond, with the appellant himself managing and supervising the building work. I

[7] Amy was born in 1983 and, by joint decision, the respondent stopped working in order to care for the child. In about 1984, the appellant obtained employment with a building concern in Knysna and the family moved there. In late 1985, together with two partners (Messrs Thompson and Tanner), the appellant started a new business in Knysna building timber houses. The parties sold their house in Port Elizabeth J

Van Heerden JA

and a plot in Knysna (which they had earlier acquired using joint funds) to generate finance for the business (Thompson & A Buttner Construction CC, trading as T & B Log Homes) to support themselves while the business established itself. From the latter half of the eighties, T & B Log Homes (T & B) became very successful and grew rapidly, expanding into the export market. B

[8] Kate was born in 1987 and, shortly after her birth, the respondent obtained part-time employment at the Perm Bank, her earnings being absorbed by the family's living expenses. The respondent subsequently qualified as an estate agent and worked as such on a part time basis in Knysna for a few years. The commissions which she earned were also used for the family's living expenses, as C well as an overseas holiday for the parties in 1996. She managed the household and devoted herself to the care and upbringing of their daughters, structuring her working hours around their needs and activities. The parties owned a house in a 'good area' of Knysna which they sold in 1994, thereafter living in rented accommodation. The D proceeds of their house were apparently transferred to New Zealand in a variety of ways.

[9] The family emigrated to New Zealand in January 1998. In preparation for this move, the appellant sold his member's interest in T & B to one of his 'partners' (Mr John Tanner) for a price of R1,2 million in December 1997. The price was 'paid' to the appellant in E various forms, including the entire member's interest in each of two property-owning close corporations, Wanderer Night Twenty CC and Wanderer Night Twenty-One CC. The member's interest in the former (WN 20 CC) was transferred to the respondent, while the member's interest in the latter (WN 21 CC) was transferred to the appellant. The F respondent was somewhat reluctant to leave Knysna, but she agreed to support the appellant in his desire to emigrate and the decision to do so was ultimately a joint one.

[10] Both parties testified that, as a family, they arrived in New Zealand 'cold'. However, within less than two months, the appellant secured employment in the building industry. The parties purchased a house in New Zealand from their savings, plus the proceeds G of a mortgage bond. Neither party was sure whether the house was registered in their joint names, but it is clear that they both regarded it as a joint asset. For the whole of 1999, the appellant was employed by a developer to oversee the building of a hotel using a log H wall system supplied by T & B and imported by the developer. As the hotel was being built in an area some two hours' drive from the parties' home, this job entailed extensive travel for the appellant and he was only able to spend the weekends at home with his family. In the mean time, the respondent commenced study by correspondence for I an international travel agent's diploma, at the same time gaining practical experience by working part time for a travel agency in New Zealand. The commissions she earned were 'offset against' air travel undertaken by members of the family. She remained very involved in the lives of the two girls, seeing to all their needs and running the household without any domestic help. Both parties agreed that their time J

Van Heerden JA

in New Zealand was stressful, largely due to work pressures on the A appellant and the resulting deterioration in his health, as well as the strain of trying to settle in a new country.

[11] In January 2000, the family moved to Australia, where the appellant had secured employment as the general manager of an engineering business in Brisbane. Both girls were enrolled in private schools. The respondent completed her travel agent's diploma and, B after about a year of trying to find employment in this field, started working on a casual basis for a small travel agency. Here, too, all her earnings were used to pay for the family's travel expenses (including trips back to South Africa), and she continued to care for the family and run the household without any assistance. C

[12] During the course of 2001, the parties purchased a plot in Brisbane and built a house on it. The property was registered in their joint names and the cost of acquiring the land and building the house was funded partly by means of a mortgage bond and partly by the D proceeds of the house which they had sold in New Zealand. In early 2002, the appellant's member's interest in WN 21 CC was sold and the proceeds used to reduce the bond over the Brisbane property.

[13] Both parties testified that, from the start of their married life, they 'pooled everything' and considered their income E and assets to be joint. The respondent was effectively in charge of their bank accounts and she used the money in these accounts to pay their household bills. According to the appellant, 'we viewed all property whether in her name or in my name . . . everything was basically a pooled resource, we didn't see our assets as being individual despite where [they] came from'. The respondent F testified to much the same effect: '(W)e really considered our assets to be joint assets . . . we did everything pretty much as a partnership and as a team.'

[14] Beginning in late 2000, Kate...