RP v PP

• Jurisdiction: South Africa
• Court: KwaZulu-Natal Division, Pietermaritzburg
• Judge: Moodley J
• Judgment Date: 05 February 2016
• Citation: 2016 (4) SA 226 (KZP)
• Docket Number: 4446/2010
• Counsel: K Bailey SC for the plaintiff. CP Hunt SC for the defendant.

Moodley J:

[1] The parties to this divorce action were married to each other on C 1 July 1972. Prior to the marriage they entered into an antenuptial contract in terms of which community of property, community of profit and loss, and marital power were excluded from their marriage. The antenuptial contract was duly registered on 30 June 1972. The three children born of the marriage have attained majority.

[2] The plaintiff instituted the action for divorce on 17 June 2010 on the D grounds that the marriage between the parties had broken down irretrievably because of the defendant's extramarital relationships, and the parties had been living apart since November 2009. She claimed a decree of divorce, an order for maintenance in the sum of R40 000 per month, a redistribution order in terms of s 7(3) of the Divorce Act 70 of E 1979 (the Divorce Act) to the effect that 50% of the defendant's assets be transferred to her, and costs. Her claim for redistribution was premised on the grounds that she had contributed directly and indirectly to the maintenance and increase of the defendant's estate in accordance with s 7(4). F

[3] In his plea and counterclaim the defendant did not resist the claim for a decree of divorce. He admitted that the marriage had irretrievably broken down, although he disputed the reason for the breakdown. He also admitted that the plaintiff required maintenance and tendered, as reasonable, maintenance in the sum of R15 000 per month until her G death or remarriage. His counterclaims in the alternative against the plaintiff related to an immovable property registered in her name, referred to as 'Farm X', and a reciprocal claim in terms of s 7(3) of the Divorce Act for a redistribution order directing the plaintiff to transfer Farm X, or such of her assets as the court deemed just, to him. During H the course of the trial the defendant abandoned his alternative counterclaims in respect of Farm X and acknowledged that the ownership of the farm vested in the plaintiff. He persisted only with the reciprocal claim for redistribution in terms of s 7(3).

[4] Both parties made 'with prejudice' tenders during the hearing of this I matter in 2013. When the trial recommenced in May 2014 the plaintiff withdrew her tender and the defendant filed a revised 'with prejudice' tender dated 9 May 2014, [1] which the plaintiff did not accept.

Moodley J

A [5] The trial, which was set down for hearing for a period of five days, commenced on 13 May 2013 and was adjourned on 17 May 2013. It resumed on 19 May 2014 and concluded on 21 May 2014.

[6] It was common cause at that date that:

[6.1]

B The marriage relationship between the parties had irretrievably broken down and both sought a decree of divorce.

[6.2]

The plaintiff is entitled to open-ended maintenance. In accordance with the order in terms of rule 43 issued on 24 August 2010, the defendant had paid her maintenance in the sum of R18 000 per month; but he increased the payment to C R22 000 per month from June 2014.

[6.3]

At the request of the plaintiff the defendant had purchased a sectional title unit (Chaseford) for her, which is registered in the plaintiff's name and in which she currently resides. The defendant is servicing the mortgage bond over the property and has D undertaken to settle the bond liability in full.

[6.4]

The defendant was residing on Farm X with his partner and son and is servicing the bond over the property.

[6.5]

The defendant was maintaining payments of the instalments and insurance premiums due on the motor vehicle used by the E plaintiff and contributions to her medical aid.

[6.6]

The defendant had paid R20 000 as a contribution to the plaintiff's costs and a further R100 000, on the grounds that this sum would be taken into consideration when the final order is made.

[6.7]

F There was no agreement, written or otherwise, between the parties regarding the division of their assets.

[7] At the end of the trial the plaintiff advised through her counsel, Advocate Bailey SC, that she accepted the defendant's tender only in respect of maintenance, the conditions pertaining to payment of the G bond over the property she occupies, the motor vehicle in her possession and her retention on the defendant's medical aid scheme.

[8] I consequently ordered a decree of divorce on 21 May 2014 but directed that the order made pendente lite in terms of rule 43 of the H Uniform Rules on 24 August 2010 would remain effective until the judgment is finalised, as a redistribution order in terms of s 7(3) of the Act and a maintenance order in terms of ss (2) are interrelated, [2] and I deemed it prudent to make an order for maintenance after an overall view of all the factors relevant to both subsections.

Moodley J

[9] The issues remaining for determination are — A

•

the respective redistribution claims in terms of s 7(3) of the parties;

•

the plaintiff's maintenance claim in terms of s 7(2); and

•

the reserved costs of the rule 43 application and the divorce action.

[10] The salient factual background is set out in the summary of the defendant's evidence below. B

Evidence presented during the trial

[11] The plaintiff did not testify but called one expert witness, Mr Vincent Varoy, a chartered accountant and registered auditor, to testify on the value of the estates of the parties and, in particular, the values assigned to assets and liabilities in the defendant's estate, which were C disputed by the defendant.

[12] The defendant testified and called his accountant, Dr Kevin Mitchell, to testify on the disputes between the parties in respect of the valuation of the defendant's estate.

The evidence of the expert witnesses D

[13] The two points of contention between the experts were: the relationship between the liability on the overdrawn capital account in the partnership of 'XXX t/a Farm X' and the loan account in the books of the defendant's incorporated company, and the values of the retirement E annuities of the defendant. Both witnesses testified and were cross-examined at length. However, when the trial resumed on 19 May 2014, after a further rule 37 conference, the parties had resolved the contentious issues, and an updated rule 37 bundle containing agreed values of the financial assets was admitted as exhibit G. I shall return to those values in due course. F

The evidence of the defendant

[14] The following is a summary of the defendant's testimony.

[14.1]

The defendant, whose highest qualification is a doctorate from the University of Natal, conferred in 1976, commenced G his professional career as an academic and lectured for 17 years. In 1978 he started a neuropsychology practice while at the university and also worked at the physiology clinic treating patients with trauma of the nervous system. The defendant's professional career spanned 40 years, of which he has been in private practice for 27 years. H

[14.2]

He met the plaintiff in 1972, when he was 25 years old and she was 19 years old and a secretary in Johannesburg. She relocated to Pietermaritzburg at the defendant's request and worked in an art gallery and then a legal practice.

[14.3]

The parties lived in a flat near the university until the I defendant purchased a house with the subsidy he received from the university. After 3 – 4 years he obtained a further bond and purchased a farm at Eston, on which he started a commercial piggery. The defendant sold his flat, and the proceeds of that sale were invested to improve the farm. The defendant also did the major work in building and J

Moodley J

A establishing the piggery and was responsible for the entire operation and the financial records. He attended to the piggery morning and evening and worked at the university during the day. He also serviced the bond on the farm. The plaintiff was pregnant with their first child at the time and worked until about a month before the child was born. B Thereafter by agreement she assisted in the piggery and did not return to work elsewhere. Her contribution was limited to minor responsibilities and she supervised the labour in his absence.

[14.4]

However, the farm was not very profitable or viable, the C plaintiff felt isolated and was unhappy there, and the defendant was under increased pressure of work at the university. The defendant sold the farm and purchased another house near the university with the proceeds of that sale and the subsidy from the university, in which they lived with their D children for about 10 – 12 years. During this time the defendant conducted his consulting practice from his office at the university and then at a medical centre, where his practice is still situated. The plaintiff was the primary caregiver for the children, and the defendant played a supportive role in bringing up the children.

[14.5]

E About three years after the birth of their second child the plaintiff began assisting twice a week with secretarial work in the defendant's practice, although he employed a full-time secretary. She also assisted the defendant for about two hours a day when he worked at the clinic. She was eventually 'paid' F a salary by the practice as a book entry for tax benefits, but in the interim she had unrestricted access to the defendant's bank accounts, to which she was a signatory, and the funds in the accounts.

[14.6]

In 1987 the defendant resigned from his position at the university and devoted himself to his professional practice as a G sole practitioner. The plaintiff managed the administration of his practice with the help of an assistant. Her salary was formalised at this time and fixed, irrespective of the hours she worked, at a substantially higher rate than that of the full-time employee. She also assisted the defendant...