SB v RB

• Jurisdiction: South Africa
• Judge: Cloete J
• Judgment Date: 16 April 2014
• Citation: 2014 JDR 0818 (WCC)
• Docket Number: 13622/2011
• Court: Western Cape High Court, Cape Town

Cloete J:

Introduction

[1]

This is a divorce action. The parties were married on 26 September 1998 out of community of property by antenuptial contract with the express exclusion of the accrual system. The antenuptial contract was not made available during the trial, but there was no indication from either party that it is anything other than the standard form contract which also excludes community of property and profit and loss. There are no children born of the marriage.

[2]

The parties separated permanently during November 2008, and it is common cause that the marriage has irretrievably broken down. The plaintiff (the wife) issued summons in May 2009. The trial commenced in March 2013 but was bedevilled by delays and amendments to pleadings. Most of the evidence was led, and the trial eventually concluded, during March 2014.

[3]

Apart from seeking a decree of divorce the plaintiff advances various claims against the defendant. The first claim is that during the marriage the parties agreed to form a joint estate, and that the plaintiff is thus entitled to 50% thereof; alternatively, that on the basis of a contract concluded during the marriage, she is entitled to 50% of the value of the defendant's estate. The second claim, which is advanced as an alternative to the first, is for an order declaring that a partnership was formed during the marriage for the purpose of a commercial enterprise, namely the buying and selling of immovable properties, coupled with the usual consequential relief. The third claim, which the plaintiff now accepts can only be

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advanced as a further alternative to the first claim, is for payment of R135 000 which is a portion of the sale proceeds of a Toyota RAV vehicle which the defendant is alleged to have donated to her during the marriage. The fourth claim is for nominal maintenance from the defendant, which I accept is until the plaintiff's death or remarriage, whichever occurs first, given that no evidence was led to the contrary.

The evidence

[4]

The only witnesses who testified were the parties themselves. At the outset it must be stated that the plaintiff impressed as an honest witness who did not attempt to embellish her version. The same cannot be said of the defendant who came across as arrogant, evasive and at times downright untruthful. There is no doubt that where the plaintiff's version differed from the defendant's, it is her version which must be preferred.

[5]

According to the plaintiff she agreed to her ex-husband being awarded custody of their two very young children for the sake of her marriage to the defendant. She accepted this arrangement because at the time the parties lived in close proximity to her ex-husband and the children in Johannesburg. However at a stage after their divorce was finalised, the ex-husband and children moved to George and thereafter to Knysna. This caused the plaintiff a great deal of unhappiness and emotional pain. Although she was cross-examined on sensitive and highly personal issues concerning the sexual aspects of the parties' relationship in an apparent effort to both embarrass her and to place the full

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responsibility for the breakdown of the marriage on her shoulders, it was the defendant's subsequent evidence that the major problem throughout the marriage was the plaintiff's difficulty in dealing with the loss of her children. He gave no evidence whatsoever about the parties' sexual relationship; nor did he even imply that it had in any way contributed to the breakdown of the marriage.

[6]

The marriage was a stormy one, although the defendant sought to downplay this. It was characterised by frequent bouts of excessive drinking which invariably erupted into violent altercations. The plaintiff's evidence was that she endured physical, verbal and mental abuse. The defendant tried to portray the plaintiff as an equal participant in the abuse which he similarly sought to minimise. In any event it was the testimony of both parties that between 1998 and 2004 the plaintiff left the defendant on various occasions, and that she left him again in June 2004 with the intention never to return. At the time the defendant was the owner of two immovable properties, one in Skeerpoort which was the parties' home, and the other in Plettenberg Bay, which was their holiday home and which had been purchased specifically to enable the plaintiff to spend time close to her children.

[7]

On 28 June 2004 the defendant wrote the plaintiff a letter, the body of which is as follows:

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'My darling [S]

This is a first for me in that I've never put my feelings down on paper! Especially one that will be such a long letter.

This is the most important thing I've ever written down. I do not function without you. My mind cannot think of anything except you. I cannot sleep, cannot eat (lost 4 kgs) cannot concentrate.

Let me start off by telling you that you were absolutely right by leaving me. I had no right, or place to treat you like I did. I was a bastard and deserved it. I never realised just how much you did for me or gave me until you left. You have scared the shit out of me! I think this was the shock that I needed. I am a useless arsehole without you and this is why I have devised this plan to win you back. No me ME, ME, ME. It will be US and not ME, OURS & NOT MINE.

There are a lot of different areas where I need to change and adapt and I DO know that I can. I'm gonna list them all to let you know how committed I am to this marriage and relationship. You are the best thing that has ever happened to me and you mean more to me than life itself. I consider it a privilege to be your hubby.

I have been trying to remember all the things to write down as I drove all over Jo'burg today. O.K. here goes:-

1.

The drinking has to be reduced to a socially acceptable level. I think this is very important as most/all of our fights start because of alcohol. I can stop drinking altogether if you want. It's YOUR choice! To prove this I will take that injection that [K] took.

2.

There will be no more verbal abuse, down-putting and just plain nastiness. You know, the type where you say "… arsehole".

3.

I will buy you this Honda Luxline, instal a Nokia cell kit and register it in your name and give you an invoice stating that it's paid in full. And the papers.

4.

This car is, however a "stop-gap" as I intend to buy you a 200 SX or Rav 4. Your choice! Again the rules as in #3 apply as far as title of the vehicle goes.

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5.

I have got to start being the father and step-parent that you are. You are shining example in this area and all I've ever been is a bastard. Although our recent trip to Plett showed you I can do it. I have attached a little note from [B] that brought a tear to my eye. He is so sad about us. He loves you to death.

6.

I will start a Trust Fund, this month, for [C] and [T]. This is to save for a university education if either/both can qualify. I will put R500 p.m. in this account and to show you commitment I will let you have all the passwords and I will not be able to draw from it. Only you can (although I hope you wont!). If neither child goes to university then at least we can use the money to buy them furniture or whatever to get them going in adult life.

7.

I offered you the other day, half ownership on both of the houses. Well that's not a good enough deal if you ask me! I think we should change our marriage status to community of property. Now, I don't know the law but surely we can amend the certificate somehow? That way you have half of everything. Like I said OURS, OURS, OURS not MINE, MINE, MINE!

8.

I will pay the servants. That's not your problem anymore.

9.

I will pay all costs for the pets. This includes the horses. I love them too so why should you take all the costs? This includes vets fees, doggie parlour, food, every bloody thing! You will never spend another cent on our animals.

10.

Standard Bank Gold Card returned. No questions.

11.

Standard Bank Petrol Card. You'll never pay for petrol again.

12.

Cell phone account. You'll never pay for a call again.

13.

You'll love this one!

I will fly the kids (or we go there) every six weeks. This means that you will see the kids nearly 9 times a year as opposed to 3 to 4 at the moment. If I could do more in this area I would [S].

14.

VINYLWORLD. Again your choice. Whatever you wanna do, I'll back you.

15.

WORK. Ah now there's a subject. What do you wanna do? If you wanna work a 40 hour week or just 3 x mornings it's your choice. You can work for [R], me, anyone, up to you. If I was you I would spend more time on your hobbies 'cos you won't have to worry about the money.

16.

Why don't we "date" again. Lets go to movies and go dancing. I mean, lets face it, you can almost dance as good as me!

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17.

The next summer in Europe (2005) I will take you there. We will go to Cardiff too to see where your dad lived. I'm sure [R] can accommodate us.

18.

I know you gave the kids to [C] for us and we both know that there's not much we can do to get them back but if we see the slightest chink in his armour we'll nail him. On this though I can give no guarantees.

19.

I will copy the "swinging" pics onto a c.d. and give it to you. You can then do what you will with it. All other porn will be deleted.

20.

The building alterations will be carried out as per your instructions. [J] has already started painting.

21.

All of what I have proposed here can be legally endorsed by a lawyer of your choice at my expense.

22.

If there's anything I've left out please let me know. I have done this whole thing for one reason. I love you and I'm so sorry.'

[emphasis supplied]

[8]

The plaintiff responded by letter...