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IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 23124/2003

DATE: 4/2/2005

not reportable

IN THE MATTER BETWEEN:

MOSHOHLI MALATJI PLAINTIFF

AND

EDZISANI PRAECY MALATJI DEFENDANT

JUDGMENT

SERITI, J

The plaintiff herein instituted divorce proceedings against the defendant.

In his particulars of claim the plaintiff alleges that the parties were married to each other in community of property on 14 February 2002 and there are no children born out of the said marriage.

The marriage relationship has irretrievably broken down because the defendant deserted the common home of the parties since June 2003 and she persists in such conduct, the defendant falsely accuses him of having extra marital affairs with other women, etc.

The plaintiff in the said particulars of claim further alleges that because of the short duration of the marriage, the conduct of the defendant and their personal circumstances, the defendant would unduly benefit if an order of forfeiture of benefits arising from the marriage in community of property is not ordered.

In his prayers the plaintiff prays for a decree of divorce, an order that the defendant forfeits benefits arising from the marriage in community of property and costs.

In her counter-claim the defendant alleges that the marriage relationship between the parties has irretrievably broken down because:

(1) plaintiff had various romantic affairs with various women during the course of the marriage and has on numerous occasions committed adultery with the said women;

(2) plaintiff threatened to kill her;

(3) plaintiff emotionally abused her;

(4) the parties drifted apart and they no longer have any love and affection for each other.

Defendant prayed for an order of divorce, division of the joint estate and costs.

The plaintiff went into the witness-box to testify. In brief, his evidence is as follows. He got married to the defendant on 14 February 2002 and they have no children. He is not staying with the defendant any longer as the defendant walked out of the common home during June 2003. Defendant walked out of the common home because of quarrels and disagreements between them relating to the running and management of the common home. Defendant further refused to contribute money towards the maintenance of the common home.

Before her final departure from the common home during June 2003, the defendant left the common home on 5 November 2002, came back on 16 November 2002, left again on 2 March 2003 and after intervention of social workers she came back on 22 May 2003. After about three weeks, that is on 22 June 2003, she left for good.

Social workers intervened and she refused to return to the common home.

When she left the common home she took along the TV set and music system she brought to the common home.

Plaintiff is unemployed because of ill health.

Plaintiff who was previously married for about twenty years, divorced during 1999. When he divorced he left his former wife with the house.

After his divorce he bought the present common home at an auction during May 2000 for an amount of R58 000,00. He utilised his pension money which he received from his employers when he retired.

All movables which are in the common home were brought by him from the earlier marriage.

Defendant brought into the marriage a TV set, music system and kitchen utensils. When she left the common home she took the TV set and music system and the kitchen utensils remained in the common house. During his marriage with defendant no new assets were bought.

Some minor improvements, eg ceiling, were made to the house during the current marriage.

Current estimated value of movables in the house is R10 000,00.

Under cross-examination he said he paid lobola for the defendant during 0ctober 2001. He had a love relationship with defendant prior to his divorce. They started knowing each other on or about 16 December 1995.

Defendant came to stay with him at his house during the year 2001.

Defendant refused to assist him to pay the water, lights and services and he utilised part of his retirement package to effect the said payments.

Improvements to the house were done before defendant came to stay with him.

Plaintiff closed his case and the defendant went into the witness box to testify.

In brief her evidence was that she started staying with plaintiff from the year 2000 and they have no children.

The marriage relationship broke down because the plaintiff was assaulting her and he was also harrassing her.

Plaintiff used to take her auto bank card, access her funds and use them for his personal use. He also used to utilise money without first consulting her.

0n all occasions that she left the common home, she left because plaintiff chased her away.

She once obtained an interim protection order against the plaintiff and on the return date same was discharged. 0n the return date plaintiff informed the officials that if she is not going to pay rental and do other things in the house, she should leave the common home and she said if they discuss first she is prepared to do everything.

When they were staying together she used to contribute money towards rental and food.

She started staying with the plaintiff on 29 May 2000. She brought into the common home a TV set, a music system and her personal clothing.

She fell in love with plaintiff during 1995 and they lived like husband and wife. She knew that he was married. She knew that plaintiff's divorce case was finalised in 1999 but she did not know about the pending divorce action until same was finalised. She only became aware of the divorce action after same was finalised.

She requests for an order of divorce and a division of the joint estate.

Under cross-examination she said that when she applied for a protection order, she forgot to inform the police that the plaintiff threatened to kill her.

She was referred to her particulars of claim particularly the paragraphs which deal with the adultery allegedly committed by plaintiff and the alleged threat to kill her, and when asked why she did not mention same in her evidence in chief her answer was that she forgot to mention the said grounds of divorce.

When asked who are the women with whom plaintiff committed adultery she said that plaintiff told her about a certain Elsie Nkosi only. She does not know about other women with whom plaintiff committed adultery.

Plaintiff took her auto bank card after 14 February 2002 and he utilised same for a long time without her permission or against her will. When asked why did you not stop the card or change the pin code she said she did not get a chance to go to the bank as she was always busy at work.

During the year 2002 she was earning R919,00 per month and presently she is earning R1 200,00.

The plaintiff gave his evidence in a clear and satisfactory manner. His version is logical and more probable.

0n the other hand, the defendant's version does not make sense at all, for instance:

(1) the reason that she gave for not stopping her auto bank card or changing the pin code;

(2) her allegation that she forgot to testify in her evidence in chief about the alleged adultery that plaintiff committed with various women and the threat to kill her allegedly made by the plaintiff.

The court cannot rely on the evidence of the defendant as same is improbable.

From the evidence of both parties it is clear that the marriage has irretrievably broken down.

The next question that the court should consider is whether the court should make an order for division of the joint estate or not.

Section 9(1) of the Divorce Act 70 of 1979 provides that when a decree of divorce is granted on the ground of the irretrievable break-down of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party in relation to the other be unduly benefited.

In Swanepoel v Swanepoel All SA Law Reports 1996 (3) 444, the court held that a marriage in community of property which was concluded on 15 December 1990, and one of the parties left the common home on 4 June 1995, was of a short duration.

In the present case lobola was paid for the defendant during 0ctober 2001 and the parties married in community of property on 14 February 2002 and the defendant left the common home during June 2003.

In my view the marriage of the parties herein was of a short duration.

The defendant's counsel argued that the court should, in favour of the defendant, in determining the duration of the marriage, take into account the period during which plaintiff and defendant were committing adultery.

I cannot find any basis for the abovementioned submission made on behalf of the defendant.

If the court takes into account assets that the plaintiff brought into the marriage, as compared with assets brought by defendant, it is clear to me that the defendant will unduly benefit from the marriage in community of property.

From the evidence the defendant has already taken almost all assets that she brought into the marriage except the kitchen utensils.

The plaintiff is unemployed and he was receiving a disability grant from the state which grant was terminated some few months ago. 0n the other hand the defendant is employed and she is earning an income.

When the court takes into account all factors of this case the defendant will unduly benefit from the marriage in community of property unless the court orders that the defendant should forfeit benefits arising from the marriage in community of property.

The court therefore makes the following order:

1. decree of divorce is granted;

2. the defendant forfeits the benefits arising from the marriage in community of property;

3. defendant is ordered to pay the costs of the plaintiff on a party and party scale.

W L SERITI

JUDGE OF THE HIGH COURT

23124-2003

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