MB v DB

• Jurisdiction: South Africa
• Judge: Lopes J
• Judgment Date: 21 June 2013
• Citation: 2013 (6) SA 86 (KZD)
• Docket Number: 4316/2013
• Counsel: A Stokes SC for the plaintiff. JA Julyan SC (with SI Humphrey) for the defendant.
• Court: KwaZulu-Natal High Court, Durban

Lopes J: B

[1] The parties in this divorce action were married to each other in Johannesburg on 13 March 1999. They have three minor children, two sons aged 14 and 13, respectively, and a daughter aged 5.

C [2] The plaintiff seeks a decree of divorce, the primary care of the parties' minor children, and maintenance for herself and the minor children, together with an order directing the defendant to pay to her an amount equal to one-half of the difference between the accrual in their respective estates.

D [3] The defendant counterclaims for a similar primary care order, together with an order declaring that the plaintiff has forfeited all the benefits arising from the marriage between the parties, save for those set out in an annexure to the defendant's plea.

[4] The litigation between the parties has a long and acrimonious E history. As that history is relevant to some of the findings in this judgment, I summarise it as follows —

(a)

pursuant to an application instituted by the defendant on 8 November 2011, an order was granted by consent directing the plaintiff to vacate the matrimonial home. That order also contained provisions F that the children remain with the defendant, with the plaintiff to have contact at certain times. No order for costs was made on 8 November 2011, but the application again came before the court on 17 August 2012 when the plaintiff sought to vary the terms of the order. The variation application was eventually adjourned sine die G with the question of costs reserved;

(b)

on 13 January 2012 the plaintiff launched rule 43 proceedings for a variation in the contact arrangements and for maintenance pendente lite for herself and the minor children, as well as a contribution towards her costs. On 27 July 2012 an order for maintenance was made together with an order that the defendant pay a contribution H to the plaintiff's legal costs in the sum of R20 000;

(c)

on 27 November 2012 the defendant brought an application to vary the contact arrangements with the children. The matter was heard on 28 November 2012 and an order was granted dealing with the contact arrangements in the interim, and reserving the question of I costs for decision by the trial court;

(d)

the defendant also brought an application in November of 2012 for an order setting aside a warrant of arrest issued in terms of an interim protection order which had been granted in favour of the plaintiff. That application was heard on 30 November 2012 and an order reserving the costs of that application was made on 13 December 2012; J

Lopes J

(e)

on 18 April 2013 the plaintiff instituted rule 43 proceedings for a A contribution towards her costs in the sum of R350 000. That application was adjourned to the first day of the trial with the question of costs reserved and to be decided by the trial court;

(f)

on 23 April 2013 the defendant brought an application seeking that the plaintiff be compelled to submit herself for interviews and B assessments with the defendant's clinical psychologist. An interim order was granted by me on 24 April 2013, returnable on 13 May 2013;

(g)

on 25 April 2013 an application for leave to appeal against the order of 24 April 2013 was refused by me, with the costs of the application for leave to appeal reserved for decision by the trial court; C

(h)

on 13 May 2013 an application was brought by the defendant to compel the plaintiff to make herself available for the interviews and assessments with the defendant's psychologist on her own, and without the benefit of any legal representative accompanying her. That application was adjourned to 16 May 2013 with costs reserved; D

(i)

on 16 May 2013 the matter was heard on an opposed basis and on 17 May 2013 judgment was handed down in favour of the defendant with the costs of the amended notice of motion, supplementary affidavits and the plaintiff's opposition reserved for determination by the trial court; E

(j)

on 23 May 2013 the plaintiff brought an urgent application for an order that it was unnecessary for her to attend the defendant's psychologist because she had conceded the relief sought by the defendant in his counter-application with regard to the care of the minor children. That application was adjourned to the first day of F the trial. The costs of the urgent application were again reserved for decision by the trial court.

[5] At a rule 37 conference held in my chambers on 29 May 2013 the parties agreed that there were four issues remaining in the trial —

(a)

whether the defendant was entitled to his claim that the plaintiff G forfeit the benefits of the accrual regime;

(b)

if not, which party bore the onus with regard to the nature and quantum of the assets which are excluded in the antenuptial contract from forming part of the accrual regime;

(c)

whether the plaintiff was entitled to maintenance, and the quantum and duration thereof; and

(d)

costs. H

[6] Although not specifically recorded as such, it was anticipated by all concerned that, in the event that the forfeiture order was not successful, the plaintiff would seek a monetary order in respect of her accrual claim. I Indeed, the defendant suggested that the parties' chartered accountants get together to discuss a possible agreement on the accrual calculation, and the ultimate destination of assets excluded from the accrual calculation in the antenuptial contract.

[7] The trial came before me on 3 June 2013 and the evidence and submissions by counsel were completed on 7 June 2013. At that stage, by J

Lopes J

A consent, I granted a decree of divorce together with a further order awarding the defendant full parental rights and responsibilities of the minor children with their primary place of residence to be with him. I also made an order that the defendant continue to pay maintenance to the plaintiff pursuant to the agreements reached in the rule 43 proceedings, pending this judgment, which deals with the remaining issues B between the parties.

[8] The plaintiff confirmed that she did not oppose the order for care of the minor children of the parties and that their primary place of residence would be with the defendant. She recorded that she was satisfied with the C arrangement because she also retained full rights and responsibilities in respect of the minor children, and the contact arrangements were working satisfactorily.

[9] Two witnesses testified for the plaintiff: Mr Peter James Duncan and the plaintiff herself. It is more logical for me to deal firstly with the D evidence of the plaintiff.

[10] The plaintiff outlined the history of her married life with the defendant, and her evidence may be summarised as follows —

(a)

the parties initially lived in Johannesburg during which time the E defendant worked as an agent for Aristocrat Leisure Ltd;

(b)

the plaintiff initially worked as a model, and then as a marketing assistant in Care Assist, giving telephonic advice on various aspects;

(c)

after the birth of their son D in June 2000, the plaintiff stopped working. She stated that this was because the defendant did not want her to work. She also conceded that she wanted to be with her F son and to raise him;

(d)

the plaintiff then maintained the matrimonial home and started studying when M was approximately 18 months old. Both her sons had health difficulties, which made the first four years of their lives very stressful for the plaintiff, and she had to dedicate large amounts of time and effort to ensuring that they obtained the necessary G occupational therapy and physiotherapy;

(e)

the plaintiff began her studies through the University of South Africa for a degree in psychological counselling. She has completed all but five subjects of that degree, which will take approximately three more years to finalise;

(f)

H during this time the defendant worked full time and frequently went overseas for work-related matters. The plaintiff took care of the home and the children;

(g)

in 2001 the parties purchased a townhouse in Johannesburg, referred to in the documents as 'Tonquani'. The property was I purchased for approximately R950 000 and required superficial renovations which were carried out by the plaintiff who painted the bedrooms, renovated the bathrooms and attended to all the soft furnishings;

(h)

in 2002 and 2003 the defendant was mostly in Australia and the plaintiff decided to attempt to set up an interior decorating business J with her brother's wife;

Lopes J

(i)

the defendant was opposed to the business and said that he A preferred the plaintiff to concentrate on her studies and the home and the family;

(j)

notwithstanding his objections, the interior decorating business started in 2004 and continued sporadically until the defendant decided to move the family to Durban in 2007; B

(k)

in 2004 the Tonquani home in Johannesburg was sold and a house at Laura Lane was purchased. This was a substantial home comprising five bedrooms, three bathrooms with a guest toilet, and situated on an acre of land in Johannesburg. Once again the plaintiff attended to all aspects of the renovation of the home. It was an C extensive project which took time. The plaintiff always sought to curtail expenditure because she was under the impression from the defendant that there was not a great deal of funding available. This home featured on the cover of The Property Magazine in Gauteng and it is obvious from that photograph that it is a magnificent residence, demonstrating that, at that stage, the parties lived a life of D considerable opulence;

(l)

during this period the plaintiff continued to care for the children, albeit with domestic assistance. At some stage the plaintiff was offered the opportunity to feature their...