Buttner v Buttner

• Jurisdiction: South Africa

Buttner v Buttner
2006 (3) SA 23 (SCA)

2006 (3) SA p23

Citation	2006 (3) SA 23 (SCA)
Case No	382/04
Court	Supreme Court of Appeal
Judge	Scott JA, Lewis JA, Van Heerden JA, Nkabinde AJA and Cachalia AJA
Heard	August 23, 2005
Judgment	September 23, 2005
Counsel	E A S Ford for the appellant.; M Bartman for the respondent.

Flynote : Sleutelwoorde G

Husband and wife — Divorce — Proprietary rights — Redistribution order — Divorce Act 70 of 1979, s 7(3) — Powers of Supreme Court of Appeal to interfere with exercise of discretion by trial Court — Though trial Court's discretion wide, SCA entitled to interfere if trial Court failed properly to exercise H discretion — Quaere: Whether discretion conferred by s 7(3) discretion in 'broad sense' (mandate to have regard to number of disparate and incommensurable features in arriving at conclusion) or discretion in 'narrow sense' (choice between two or more different but equally permissible alternatives).

Husband and wife — Divorce — Proprietary rights — Redistribution order — Divorce Act I 70 of 1979, s 7(3) — Discretion of Court — First jurisdictional precondition consisting in contribution made by spouse claiming redistribution order to estate of other spouse described in s 7(4) — Accordingly wrong for Court to consider claim from opposite perspective, viz absence of contribution by respondent. J

2006 (3) SA p24

Husband and wife — Divorce — Proprietary rights — Redistribution order — Divorce Act A 70 of 1979, s 7(3) — Although husband principal breadwinner, parties having by agreement pooled income and regarded assets acquired through joint effort as joint assets — No evidence that wife's contribution as housewife and mother regarded as being less valuable or that her contribution less instrumental in acquisition of parties' assets — Said division of labour B conscious choice made by both parties — Redistribution to reflect this principle of equal sharing.

Husband and wife — Divorce — Proprietary rights — Redistribution order — Divorce Act C 70 of 1979, s 7(3) — Court entitled to have regard to conduct of parties where it would be unjust to disregard it.

Husband and wife — Divorce — Proprietary rights — Redistribution order — Divorce Act 70 of 1979, s 7(3) — Court to take into account assets inherited by each party.

Husband and wife — Divorce — Maintenance — For spouse — Token award — Suitability of — Court entitled to make award of token maintenance provided that such order justified in light of factors set out in s 7(2) of Divorce Act 70 of 1979. D

Appeal — To Supreme Court of Appeal — Security for costs — Application for — Lateness of — Application for security for costs at time when vast majority of costs in appeal already incurred both misconceived and futile.

Headnote : Kopnota

The appellant had instituted action for divorce in a Local Division in which he claimed, inter alia, a redistribution in terms E of s 7(3) of the Divorce Act 70 of 1979 in respect of the respondent's member's interest in a property-owning close corporation purchased in her name out of the proceeds of the sale of appellant's business. His wife, the respondent, counterclaimed half of the net proceeds of the sale of the parties' former matrimonial home, alternatively a s 7(3) redistribution on the basis that the appellant transfer to her half of the value of the assets F amassed during the marriage and maintenance for herself until her death or remarriage. In response, in amended particulars of claim, appellant likewise claimed transfer to him of half of the value of the assets in her estate in terms of s 7(3) in the event of her claim for half of the proceeds of the value of the family home succeeding. In granting a divorce the Court a quo dismissed the appellant's G proprietary claims and ordered appellant to pay to respondent the sum of R360 000, maintenance at the token rate of R10 per month until her death or remarriage and costs of the action. The appellant with the leave of the Court a quo appealed to the Supreme Court of Appeal against the proprietary, maintenance and costs order. The parties were married out of community of property, and the antenuptial H contract excluded community of profit and loss. Throughout their 27 years of marriage appellant was the principal breadwinner whilst the respondent primarily managed the household and was responsible for the care and upbringing of the parties' two daughters. Although the respondent worked periodically on a part-time basis throughout the marriage her earnings were at all times absorbed by the family's I expenses. In any event, the parties had pooled their income and regarded the assets acquired through their joint efforts as being joint assets. At the time of the dissolution of the marriage the appellant had appropriated R975 056, being the balance of the proceeds from the sale of the matrimonial home. In due course R720 000 of this sum was transferred to an Australian bank account in the name of a former business associate who held the funds in trust for the appellant. The respondent retained for herself

2006 (3) SA p25

the net proceeds from the sale of her member's interest in the close corporation in an amount of A R284 000.

Held, that although the granting or refusal of a s 7(3) redistribution order involved the exercise of a wide judicial discretion and the SCA's room to interfere was therefore limited, it could nevertheless proceed to do so if the Court a quo had failed, by reason of misdirection in law or as a result of an erroneous B material finding, to exercise its discretion properly. It was not, however, necessary to decide whether the discretion was 'a discretion in the broad sense' (viz a mandate to have regard to a number of disparate and incommensurable features in arriving at a conclusion) or 'a discretion in the narrow sense' (viz a choice between two or more different but equally permissible alternatives). (See Knox D'Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A).) C (Paragraph [20] at 33B - D.)

Held, further, that the first jurisdictional precondition to the exercise of the trial Court's discretion under s 7(3) consisted in a contribution made by the spouse claiming the redistribution order to the estate of the other spouse, and that the trial Court had accordingly misdirected itself in considering appellant's claim in terms of s 7(3) from the opposite perspective, namely the absence of a D current contribution by respondent to her acquisition of the member's interest in the close corporation. (Paragraph [22] at 34B - C.)

Held, accordingly, that the SCA was entitled to substitute its own exercise of the discretion afforded by s 7(3) for that of the trial Court, and that it was not necessary to decide the nature of the discretion conferred on the trial Court by s 7(3). (Paragraphs [20] E and [24] at 33F and 34F.)

Held, further, that as the facts relevant to the claim and counterclaim were so closely related the appropriate approach to considering the claims was a globular one. (Paragraph [24] at 35B - C.)

Held, further, that had the proceeds of the sale of respondent's member's interest in the close corporation been disposed of prior to the marriage breakdown the proceeds would in all F probability have been utilised for the benefit of both parties, as were the proceeds of the sale of appellant's interest in the close corporation that were to reduce the bond over the matrimonial home. If this had been done the net proceeds of the home remaining in the Australian account would have amounted to R1 004 000. (Paragraph [26] at 35G/H - 36B.)

Held, further, that in accordance with the modus operandi followed throughout their marriage, the respondent G would have received a half-share of R502 000, and that to redress the imbalance the appellant would have to pay to the respondent R218 000. (Paragraph [26] at 36B - C.)

Held, further, that in the exercise of its discretion to make or refuse a distribution in terms of s 7(3) the Court was obliged by s 7(5)(a) to take into account assets inherited by each H party. (Paragraph [28] at 36F - G.)

Held, further, that in the exercise of its discretion in terms of s 7(3) the Court had to take into account the misconduct of one or both of the parties, but only where to disregard it would be unjust. (Paragraph [31] at 37F - G.)

Held, that it was in the circumstances of the present case not inequitable to disregard respondent's adultery. (Paragraph [32] at 38C - D.)

Held, further, that the respondent had a modest earning capacity as a result of a mutual decision that she should run the I parties' home and raise their children, which capacity was unlikely to change, while the appellant's position at the time of the divorce was such that although he was not immediately able to contribute to her maintenance, his employment circumstances were likely to change in the near future. (Paragraphs [34] and [35] at 38H - 39G.) J

2006 (3) SA p26

Held, further, that s 7(2) did not alter the position that one of the fundamental principles for an award of maintenance was the A ability to pay on the part of the spouse from whom maintenance was claimed. (Paragraph [36] at 40A - B.)

Held, further, that the earlier approach of the Courts to make an order of token maintenance unless circumstances were proved to show that it would probably not be needed or which rendered it unjust were in conflict with s 7(2) which required a Court to first decide B whether a need for maintenance existed and, if so, by whom and to whom; secondly the amount and thirdly the period. This did not mean that a Court was not competent to make an award of token maintenance if circumstances rendered it just in the light of the factors set out in s 7(2), as was the situation in casu. (Paragraph [36] at C 40C - E.)

Held...