D J R v RTR

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Baqwa AJ, Kollapen J, Madlanga J; Majiedt J, Mathopo J, Mhlantla J, Rogers J and Tshiqi J.
• Judgment Date: 01 February 2023
• Docket Number: CCT 337/21
• Hearing Date: 16 August 2022
• Court: Constitutional Court

Tshiqi J (Baqwa AJ, Kollapen J, Madlanga J; Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring):

Introduction

[1]

This is an application for leave to appeal against part of the order of the High Court of South Africa, Gauteng Division, Pretoria. The order flowed from an application by the respondent, Mrs R[. . .] T[. . .] R[. . .], in terms of which she sought that the applicant, Mr D[. . .] J[. . .] R[. . .], be held in contempt of an earlier High Court order in divorce proceedings between the parties.

[2]

Mr R[. . .] is now challenging the contempt order on two grounds. The first challenge is aimed at the fact that in paragraph 2.3 of the order in the divorce proceedings, the High Court had declared that Mr R[. . .] and Mrs R[. . .] remained as the joint owners of a property known as R[. . .] d[. . .] M[. . .], in M[. . .], Mozambique and were equally entitled to whatever net rental income the property generated. In the contempt proceedings, the High Court held that Mr R[. . .] was in contempt of that

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Tshiqi J (Baqwa AJ, Kollapen J, Madlanga J; Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring)

order because he had failed to pay over to Mrs R[. . .] her share of the net rentals earned from that property.

[3]

The second challenge was aimed at the decision of the High Court to vary paragraphs 2.4 and 2.6 of its order in the divorce proceedings by invoking rule 42(1) of the Uniform Rules of Court. In terms of paragraph 2.4 of the order in the divorce proceedings, Mr R[. . .] had to transfer 40% of his shareholding in his business in Mozambique to Mrs R[. . .] within 60 days of the order, including the shareholding in certain specified Mozambican companies as well as in a specified South African company. In terms of paragraph 2.6, the High Court ordered the parties to retain the movable property in their possession at the time of the order, including half of the Dream Vacation Club points. In the contempt of court proceedings, the Court unilaterally varied the orders in both paragraphs 2.4 and 2.6 and made orders that none of the parties had prayed for. It substituted paragraph 2.4 with an order requiring Mr R[. . .] to pay Mrs R[. . .] an amount of $450 000 within 60 days. The High Court also varied paragraph 2.6 to the effect that if Mr R[. . .] paid Mrs R[. . .] an amount of R44 000, he would become the sole owner of the Dream Vacation Club points.

Factual background

[4]

Mr and Mrs R[. . .] were married out of community of property in Zimbabwe after the birth of their first born child and then settled there in a small town. It seems that they came back to South Africa for a while before moving back to Zimbabwe. At the time of their marriage, they both had little to no assets. Mrs R[. . .] had a matric qualification coupled with a six month stable management course. Mr R[. . .] also had a matric qualification and was in the process of qualifying as an electrician. When they later moved back to Zimbabwe, Mrs R[. . .] worked for a well-known horse racing entity and thereafter as a bookkeeper, after having undergone a six month bookkeeping related training course. She later joined the successful electrical services company, which Mr R[. . .] had opened.

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Tshiqi J (Baqwa AJ, Kollapen J, Madlanga J; Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring)

[5]

In its early days the company was small, but it soon grew into a business which provided the parties with a comfortable standard of living. The parties conducted the business as a partnership and both held 50% shares of the company. Mrs R[. . .] dealt with the administration of the business, and Mr R[. . .] focused on the operations. Later on the company merged with another and at that point Mrs R[. . .] discontinued rendering her services to the company.

[6]

Owing to the declining economy and other adverse factors prevailing in Zimbabwe at the time, Mr R[. . .] decided to explore business opportunities in Mozambique. This entailed frequent travelling and absence from his family in Zimbabwe. At some stage, the parties moved to an estate in White River, South Africa, and also acquired a house in Maputo, Mozambique, where they stayed for a short period of time. During the subsistence of the marriage, it was Mr R[. . .] who provided the funds for the acquisition of the parties' assets, movable and immovable, as well as for their maintenance. There is a dispute as to whether Mrs R[. . .] had been encouraged to become self-sufficient or whether Mr R[. . .] was content to have Mrs R[. . .] create and maintain a comfortable domestic environment for the sake of the family, primarily the children.

The divorce action

[7]

The marriage relationship eventually broke down and in 2015 Mrs R[. . .] instituted a divorce action in the High Court. Despite the marriage being solemnised in Zimbabwe and in terms of the laws of that country, the parties agreed that the High Court had jurisdiction to determine the divorce proceedings and also agreed that the Court would apply the Matrimonial Causes Act of Zimbabwe [1] (the Act). What enjoyed the particular attention of the High Court, were the patrimonial consequences of the divorce. The parties were in agreement that the maintenance claimed by Mrs R[. . .] would stand over to be determined by a Maintenance Court as it could only be properly adjudicated once the consequences and extent of a redistribution order had

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Tshiqi J (Baqwa AJ, Kollapen J, Madlanga J; Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring)

been determined. Because the dispute centred around the patrimonial consequences of the divorce, more particularly, whether a redistribution order should be granted and, if so, on what terms, the Court focused on the provisions of section 7 of the Act.

[8]

Section 7 clothes an appropriate court with the authority to exercise its judicial discretion to make an order re-allocating matrimonial property upon granting a decree of divorce, judicial separation or nullity of marriage. Section 7, headed "Division of assets and maintenance orders", provides:

"(1)

Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to—

(a)

the division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;

(b)

. . .

(2)

An order made in terms of subsection (1) may contain such consequential and supplementary provisions as the appropriate court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between the spouses and may in particular, but without prejudice to the generality of this subsection—

(a)

order any person who holds any property which forms part of the property of one or other of the spouses to make such payment or transfer of such property as may be specified in the order;

(b)

. . .

(3)

. . .

(4)

In making an order in terms of subsection (1) an appropriate court shall have regard to all the circumstances of the case, including the following—

(a)

the income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;

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Tshiqi J (Baqwa AJ, Kollapen J, Madlanga J; Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring)

(b)

the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;

(c)

the standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;

(d)

the age and physical and mental condition of each spouse and child;

(e)

the direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;

(f)

the value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;

(g)

the duration of the marriage;

and in so doing the court shall endeavour as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses."

[9]

Mrs R[. . .] argued that it would be just if Mr R[. . .] were ordered to transfer to her one half of his assets, or such portion as the Court deemed just. Alternatively, if Mr R[. . .] were to be ordered to make payment to her, the payment that would be just would be an amount equal to half of the net value of his estate.

[10]

The High Court considered the circumstances set out in section 7(4) of the Act. Regarding the earning capacity of the parties, it took into account the fact that Mrs R[. . .] had a limited income-generating capacity. This was, according to the High Court, due to the fact that the training courses she attended in the early years of their marriage had become outdated and of little use at the time of the divorce proceedings. It also considered that she had no recent work experience. It further

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Tshiqi J (Baqwa AJ, Kollapen J, Madlanga J; Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring)

took into account that her stable management abilities appeared to be limited. The High Court formed the view that even though Mrs R[. . .] was doing photographic work for local businesses, the nature and extent of those ventures and the income they generated appeared to be small.

[11]

When dealing with Mr R[. . .]'s income-earning...