Wijker v Wijker

• Jurisdiction: South Africa

Wijker v Wijker
1993 (4) SA 720 (A)

1993 (4) SA p720

Citation	1993 (4) SA 720 (A)
Court	Appellate Division
Judge	Joubert JA, EksteenJA and Van Coller AJA
Heard	May 19, 1993
Judgment	August 26, 1993

Flynote : Sleutelwoorde B

Husband and wife — Divorce — Proprietary rights — Forfeiture of patrimonial benefits of marriage — Divorce Act 70 of 1979, s 9(1) — Abundantly clear from context and subject-matter of section that C Legislature could never have intended that three factors mentioned in section should be considered cumulatively — Accordingly not essential for claimant to prove substantial misconduct before forfeiture order can be granted.

Husband and wife — Divorce — Proprietary rights — Forfeiture of patrimonial benefits of marriage — Divorce Act 70 of 1979, s 9(1) — D Finding by trial Court that one party would be unduly benefited if forfeiture order not made, based on consideration that it would be unfair that that party should share in successful business established by other party and owned in community and towards which he had made hardly any contribution, would be finding based on principle of fairness — Trial E Court not justified in applying this equitable principle when making value judgment — Not only contrary to basic concept of community of property but no provision in section for application of such principle.

Husband and wife — Divorce — Proprietary rights — Forfeiture of patrimonial benefits of marriage — Divorce Act 70 of 1979, s 9(1) — F Notwithstanding introduction into our law of 'no fault' principle in divorce, party's misconduct may be taken into account in considering circumstances giving rise to breakdown of marriage — Words 'circumstances giving rise to breakdown of marriage' of wide import and this factor stated in broad terms — Fact that substantial misconduct included as G third factor not excluding consideration of misconduct as circumstance giving rise to breakdown of marriage.

Husband and wife — Divorce — Proprietary rights — Forfeiture of patrimonial benefits of marriage — Divorce Act 70 of 1979, s 9(1) — When determining whether, if order for forfeiture not made, one party would in H relation to other party be unduly benefited, trial Court not exercising discretion in narrower sense — No choice between permissible alternatives involved in such determination — In considering appeal Appeal Court may therefore differ from Court a quo on merits — Only after Court has concluded that party would be unduly benefited is it empowered to order forfeiture of benefits and in making this decision Court exercises I discretion in narrower sense.

Headnote : Kopnota

In determining whether, if an order for the forfeiture of the patrimonial benefits of a marriage is not made in terms of s 9(1) of the Divorce Act 70 of 1979, the one party will in relation to the other be unduly benefited, it is obvious from the wording of the section that the first step is to determine whether or not the party against whom the order is sought will in fact be benefited. That will be purely a factual issue. J Once that

1993 (4) SA p721

A has been established the trial Court must determine, having regard to the factors mentioned in the section, whether or not that party will in relation to the other be unduly benefited if a forfeiture order is not made. Although the second determination is a value judgment, it is made by the trial Court after having considered the facts falling within the compass of the three factors mentioned in the section. When considering the approach that should be adopted on appeal in such a matter, the remarks made by E M Grosskopf JA in Media Workers Association of South B Africa and Others v Press Corporation of South Africa Ltd ('Perskor') 1992 (4) SA 791 (A) at 80C-G in dealing with the manner in which an appeal in an unfair labour practice dispute should be approached, are equally applicable. To determine whether a party would be unduly benefited a trial Court would certainly not be exercising a discretion in the narrower sense. Here too no choice between permissible alternatives would be involved. In considering the appeal the Appeal Court would therefore not be limited by the principles set out in Ex parte Neethling and Others 1951 (4) SA 331 (A) C at 335D-E and it may differ from the Court a quo on the merits. It is only after the Court has concluded that a party would be unduly benefited that it is empowered to order a forfeiture of benefits, and in making this decision it exercises a discretion in the narrower sense. It is difficult to visualise circumstances where a Court would then decide not to grant a forfeiture order.

As to whether a finding of substantial misconduct is a precondition to the granting of an order of forfeiture in terms of s 9(1) of the Divorce Act D 70 of 1979, the context and the subject-matter of that section make it abundantly clear that the Legislature could never have intended that the factors mentioned in the section should be considered cumulatively. As was stated by Kriegler J in Klerck v Klerck 1991 (1) SA 265 (W) at 269D-G, what the Legislature clearly meant by its choice of words was that the Court should take into consideration the three named factors. In linking these factors it did not employ the conjunction 'or' precisely because it wished to instruct the Court to consider the three categories of factors E in broad terms. The clear meaning of the words used by the Legislature is that the Court must ask itself whether one party would be unduly benefited if an order of forfeiture were not made, and in order to answer that question regard should be had to the duration of the marriage, the circumstances in which it broke up and, if present, substantial misconduct on the part of one or both parties.

Accordingly it was correctly held in Binda v Binda 1993 (2) SA 123 (W) F that Matyila v Matyila 1987 (3) SA 230 (W), which decided that all three factors to which a Court must have regard should be alleged and proved, and that consequently, if a party failed to prove substantial misconduct, forfeiture could not be decreed, was clearly wrong.

Notwithstanding the introduction into our law of the 'no fault' principle in divorce, a party's misconduct may be taken into account in considering, in terms of s 9(1) of Act 70 of 1979, the circumstances which gave rise to G the breakdown of the marriage. The words 'the circumstances which gave rise to the breakdown' of the marriage, occurring in that section, are words of wide import and this factor has been stated in broad terms. The fact that substantial misconduct has been included as a third factor does not exclude a consideration of misconduct as a circumstance which gave rise to the breakdown of the marriage. Substantial misconduct may include conduct which has nothing to do with the breakdown of a marriage and may for that and other reasons have been included as a separate factor. Too H much importance should, however, not be attached to misconduct which is not of a serious nature. The remarks of Botha JA, made in Beaumont v Beaumont 1987 (1) SA 967 (A) at 994D-E with regard to a Court's assessment of a party's misconduct as a relevant factor under ss (2) and (3) of s 7 of the Divorce Act 70 of 1979, apply with equal validity when a Court, in considering the circumstances which gave rise to the breakdown of the I marriage, also assesses a party's misconduct as a relevant factor.

A finding by a trial Court that one party to the marriage would be unduly benefited if a forfeiture order in terms of s 9(1) of Act 70 of 1979 were not made, based on the consideration that it would be unfair that that party should share in a successful business established by the other party and owned in community, while he had made hardly any contribution towards its management, administration and profit-making, would be a finding based on a principle of fairness. The fact that such party would be entitled to J share in the successful business would be a consequence of the

1993 (4) SA p722

A parties' marriage in community of property and the trial Court would not be justified in applying this equitable principle when making a value judgment. Not only is it contrary to the basic concept of community of property, but there is no provision in the section for the application of such a principle. Even if it were to be assumed that such party had made no contribution to the success of the business and that the benefit which he would receive would be a substantial one, it did not necessarily follow that he would be unduly benefited. The benefit that would be received B could not be viewed in isolation, but in order to determine whether a party would be unduly benefited, the Court would have to have regard to the factors mentioned in the section.

The decision in the Transvaal Provincial Division in Wijker v Wijker reversed in part.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Heyns J). C The facts appear from the judgment of Van Coller AJA.

J L van der Merwe SC (with him P A van Niekerk) for the appellant referred to the following authorities: Engelbrecht v Engelbrecht 1989 (1) SA 597 (C) at 601F, 602H-I, 603F-G; Matyila v Matyila 1987 (3) SA 230 (W); Klerck v Klerck 1991 (1) SA 265 (W); Koza v Koza 1982 (3) SA 462 (T) at D 465F-H; H R Hahlo The South African Law of Husband and Wife 4th ed at 436.

F H Terblanche (with him D A Smith) for the respondent referred to the following authorities: Beaumont v Beaumont 1987 (1) SA 967 (A) at 969D; Klerck v Klerck 1991 (1) SA 265 (W) at 269C; Engelbrecht v Engelbrecht E 1989 (1) SA 597 (C) at 601E-I, 603D-E; Matyila v Matyila 1987 (3) SA 230 (W); Singh v Singh 1983 (1) SA 781 (C); H R Hahlo The South African Law of Husband and Wife 5th ed at 373; D J Joubert 'Verbeuring van Voordele van Huwelik na Egskeiding' (1982)...