Recently, in a case in the High Court in Pretoria, the question of whether a spouse guilty of “substantial misconduct” such as adultery should be punished has come under the spotlight.
One of the most significant policy questions involving the division of marital property is whether the division should be influenced by marital misconduct. At present, a majority of jurisdictions hold that marital misconduct is a factor to be considered
The recent case of an Mpumalanga couple, who divorced after 26 years of marriage because the woman had affairs, sparked a closer look at whether the Divorce Act is outdated.
A magistrate ruled that the woman forfeited some of the financial benefits she and her husband acquired during their marriage, as she had cheated on him on several occasions.
The parties in this case were married out of community of property with an antenuptial contract that included the accrual system. The magistrate found in favour of the husband and granted an order of partial forfeiture of marital benefits against the wife. He also ordered her to pay the costs. The woman then lodged an appeal to the High Court to appeal the magistrate’s order.
Section 9(1) of the Divorce Act 70 of 1979 states:
“(1) When a decree of divorce is granted on the ground of the irretrievable break-down of 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 will in relation to the other be unduly benefited.”
According to the Judge in the High Court, the magistrate, correctly found that the woman was guilty of misconduct. However, the Judge said, this was not the sole cause of the break-up of the marriage and he found that the husband had “reluctantly” agreed that he rejected his wife’s efforts to reconcile. The Judge was also of the view that it was seldom that a marriage would break down solely due to the conduct of one party.
The Judge referred to the evidence by the husband, in which he admitted his wife was a diligent, wife and a good mother who resigned from her work to devote all her time to their children and the family. This, according to the man, allowed the family to prosper. The judge said that, although her contribution towards the growth of her husband’s estate was not quantified, it could be inferred that she used most, if not all, of her earnings while she was employed, towards the maintenance of the household.
The magistrate’s erred in his finding that the woman would unfairly benefit from their marital estate if he did not order a portion of it forfeited due to her misconduct. It is trite law that a party can only benefit from an asset brought into the estate by the other party, and not from his or her own asset. The wife in this case could thus not forfeit the assets which came about as a result of her contributions. The Judge was further stated that the magistrate, in awarding a cost order against the wife, wanted to punish her for her misconduct. He said the logic behind section 9(1) was that a spouse should not benefit financially from a marriage he or she had wrecked.
Although the Divorce Act 70 of 1979 did away with the “fault” principle a few years ago as a ground for divorce, the Act still allowed for the forfeiture of financial benefits if a spouse committed adultery. It appeared fault still played a role in our divorce system. The judge questioned whether “misconduct” was still relevant.
In light of the recent decision of the Constitutional Court in the case of DE v RH 182/14 it follows that Section 9 of the Divorce Act is archaic and outdated as it was aimed at punishing a party. The court ruled the Justice Minister and Speaker of Parliament be added as parties and that interested parties may enter the fray as friends of the court.
In the past our courts relied on the guilt principle in order to reach their decisions. South Africa’s courts have been called upon to pronounce on section 9(1), however, they have been unpredictable regarding the weight to be attached to each of the factors listed in section 9(1) when granting an order of forfeiture of patrimonial benefits. In 1992 that the Appellate Division in the case of Wijker clarified the position and stated that all three factors do not have to be present and they need not be considered cumulatively. South African courts generally, have failed to properly interpret section 9(1) and neglected to provide proper guidance on what the phrase “unduly benefited” means within the context of the Act.
As stated above courts have to consider three factors before granting a forfeiture order:
· The duration of the marriage;
· the circumstances which gave rise to the breakdown thereof;
· and any substantial misconduct on the part of either of the parties.
It is clear from previous decisions by our courts that when the marriage is regarded by a court as of short duration, the court will order forfeiture if it is established that if the order is not made one party will be unduly benefited. In the case of Swanepoel v Swanepoel, the court held that a marriage which was concluded on 15 December 1990, where one of the parties left the common home on 4 June 1995, was of a short duration and in Malatji v Malatji, the parties married on 14 February 2002 and the defendant left the common home during June 2003, the marriage was held to be of short duration.
The Act does not say what circumstances may be considered by our courts in judging what led to the breakdown of the marriage. Cases are also not clear on this point and such an analysis have to be made on a case-to-case basis. Misconduct such as itself is not a factor which can bring about a forfeiture order, such misconduct must be substantial and the concept of substantial misconduct is not defined in the Act. Our courts have also not been helpful in this regard.
In the case of Beaumont v Beaumont it was stated “...ln many, probably the most cases, both parties will be to blame, in the sense of having contributed to the break-down of the marriage... In such cases, where there is no conspicuous disparity between the conduct of the one party, and that of the other, our Courts will not indulge in an exercise to apportion the fault of the parties, and thus nullify the advantage of the “no-fault” system of divorce.”
The legislature has not gone far enough to address the deficiencies and injustices inherent in the guilt principle and therefore the court’s decision was correct that the Justice Minister and Speaker of Parliament be added as parties and that interested parties may enter the fray as friends of the court to.
The fault principle is generally stated as a guideline in the Act. It must be removed from the statute book in clear and unambiguous terms. In my submission, its retention only serves to plague divorce law with confusion and uncertainty.
“[A better society] will and must be measured by the happiness and welfare of the children, at once the most vulnerable citizens in any society and the greatest of our treasures.” – Nelson Mandela’s Nobel Peace Prize Acceptance Speech, 10 December 1993.
Child abuse is a global problem. Studies indicate that 25% to 50% of children globally suffer from physical abuse, and around 20% of girls and 5 to 10% of boys experience sexual abuse. There are substantial consequences not only for the affected persons, but also for society as a whole, and these can no longer be overlooked.
News headlines on child sexual abuse is now a daily recurrence, with some reading:
“Sexual abuse at Cape Town crèche”, “Top Cape school fires music teacher facing sexual assault”, “Jehovah’s Witnesses hid child sex abuse, inquiry told”, “Six men guilty in latest UK child sex abuse case”, “UK child sex abuse stuns judge”, “French judges on way to CAR to probe alleged child sex abuse”, “Case against Bloemfontein sexual assault parents postponed again”.
This year child sexual abuse has remained a prominent feature on the news agenda with details emerging about a range of high profile abuse cases. Trusted individuals such as, Bob Hewitt, Rolf Harris and Dr Myles Bradbury were convicted of multiple counts of sexual abuse against children and popular South African Dutch Reformed Minister and Author Ds. Solly Ozrovech was accused of sexually abusing children.
Many children worldwide are affected by such violence, yet it is seldom acknowledged, in part because it is so commonplace. Child sexual abuse is a hideous crime. For the vast majority of us, the idea of violating, hurting and abusing a child is intolerable. Nonetheless, these crimes are not as rare as we would like to think. Every day, countless children around the world are sexually abused and exploited.
Over 90% of sexually abused children were abused by someone they knew. In the UK have seen the number of recorded sexual offences against children increase by between 12% and 39% in 2013/14 compared with the previous year. For ChildLine UK in the past year, counselling sessions where the main concern was sexual abuse or online sexual abuse accounted for 45% of discussions.
According to a UNICEF research document it is estimated that almost 3,500 children under the age of 15 die from physical abuse and neglect every year in the industrialized world. The greatest risk is among younger children. A small group of countries Spain, Greece, Italy, Ireland and Norway appear to have an exceptionally low incidence of child maltreatment deaths; Belgium, the Czech Republic, New Zealand, Hungary and France have levels that are four to six times higher. The United States, Mexico and Portugal have rates that are between 10 and 15 times higher than those at the top of the league table.
In Australia the number of children being sexually assaulted by family members has more than doubled in the past 5 years, with almost 10 incidents being reported to police every week. While police have pointed to mandatory reporting requirements for the increase, campaigners have warned that the dominant image of a child sex offender being a stranger is leaving children vulnerable to offenders who are known to them.
Data from a 2011 study in Germany on a nationally representative sample of individuals aged 16 to 40 found that about 6% of women and 1% of men reported incidents of sexual harassment in their youth.
A 2006 national survey collected data from girls and women aged 16 to 70 in Italy on their experiences of being touched sexually or forced to do any other sexual activity against their will. Around 7% said they experienced sexual violence by a non-partner before age 16 with the most commonly reported perpetrators being acquaintances, relatives and strangers.
The Optimus Study carried out in Switzerland in 2009, collected information from adolescent boys and girls (aged 15 to 17) on their experiences of sexual victimization. Around 40% of girls and 20% of boys reported incidents of sexual victimization that did not involve physical contact at some point in their lives.
In 2012, Prevent Child Abuse America released an economic analysis positing that the prevalence of child abuse and neglect in the United States costs over $80 billion annually. It is estimated that the economic cost of child abuse in East Asia and the Pacific exceeds $160 billion based on economic losses due to death, disease and health risk behaviours attributable to child abuse and in the UK 3.2 billion pounds.
South Africa is reported to have one of the highest rates of sexual violence in the world. Several small scale studies have found that adolescent girls are at particular risk for experiencing forced sex with estimates ranging from 39% to 66%. Despite this, nationally representative data on the prevalence of sexual violence against children remain limited. An analysis of the 2010/2011 police records found that a total of 28,128 sexual offences against children under the age of 18 were reported to the police, representing just over 50% of all the reported crimes committed against children that year. An analysis by victim’s’ age using the 2008/2009 police-recorded data reveals that around 6 in 10 of the reported sexual offences committed against children that year affected those below the age of 15 and that about one quarter of the child victims were under the age of 10. It is important to note however, that research has consistently found that most sexual assaults are not reported to the police, and even when they are, the age of the reported victim is often unknown. A 2011-2012 nationally representative survey found that around 1 in 20 secondary school students (5%) reported at least one act of unwanted sexual contact (regardless of whether penetration occurred or not) at school in the year preceding the survey. Girls were much more likely to report having been recently sexually violated at school than boys (8% and 1%, respectively). Another study conducted in the Eastern Cape and KwaZulu-Natal provinces found that 28% of men reported previously raping a woman (whether alone or with accomplices). Reports of rapes by multiple perpetrators were especially high, with 20% of men reporting that they participated in a gang rape. However, only 5% of men admitted that they had raped a child under the age of 15.
Gauteng emerges as the province with the largest number of recorded crimes against children, although KwaZuluNatal has a larger child population. Northern Cape records the highest rate of recorded crime, closely followed by Western Cape and Free State. While the reported rates of crimes against children are extremely high, many incidents go unreported. The hidden nature of violence against children arises, among others, from the fact that young children usually lack the capacity to report violence and many others may fear further harm by the perpetrator or may worry that interventions by authorities may make their situation worse.
South Africa has an excellent and extensive legislative framework for protecting children. Both the Constitution and the Children’s Act ensures that children’s rights are protected and that provisions are made to ensure the best interests of the child.
Sexual violence in childhood hinder all aspects of development: physical, psychological and social. Apart from the physical injuries that can result, exposure to HIV and other sexually transmitted infections, along with early pregnancy, are also possible outcomes. Other physical consequences of sexual violence include a range of self-harming behaviours, such as the development of eating disorders, like bulimia and anorexia.
Children who have been abused are also more likely to attempt suicide; the more severe the violence, the greater the risk. Researchers have consistently found that the sexual abuse of children is associated with a wide array of mental health consequences, including symptoms of depression and panic disorder. Anxiety and nightmares are also commonly observed in younger children who have experienced such violence. The psychological impact of sexual violence can be severe due to the shame, secrecy and stigma that tend to accompany it, with child victims often having to find ways to cope in isolation. The risk of developing adverse mental health outcomes has been found to increase in relation to the frequency and severity of children’s exposure to sexual violence and to exert a lasting impact.
It is clear that the child violence situation in South Africa needs urgent and serious attention. Much of the needed policy and legislation is in place. The challenge now is to establish the coordinating and other mechanisms to ensure efficient and effective implementation of the policies, legislation and related programmes so as to fulfil the implied commitment to a better society characterised by the welfare and happiness of the country’s children.
Bertus Preller – Family Law Attorney
Bertus Preller & Associates Inc.
T: +27 21 422 2461
Today the Constitutional Court handed down judgment in an appeal in the case of DE v RH 182/14 concerning the continued existence of a spouse’s right to claim damages for adultery against a third party.
The applicant, Mr DE, sued the respondent, Mr RH, in the North Gauteng High Court, Pretoria for damages on the basis that Mr RH had an extra-marital affair with Mr DE’s former wife, Ms H. Mr DE had launched his action based on the general remedy for the infringement of personality rights, specifically claiming for insult to his personality and the loss of comfort and society of his spouse. Mr DE was successful in respect of the claim for insult but the High Court found that the loss of comfort and society of his spouse could not be proved because there was no evidence to show that the adultery had caused the breakup of Mr DE’s marriage.
Mr RH appealed against these findings to the Supreme Court of Appeal. That Court recognised that our law currently allows for the claim of insult against a third party in the case of adultery. However, of its own accord, it raised the question whether the claim should continue to exist. In dealing with this issue, the Supreme Court of Appeal judgment canvassed the historical trajectory of the claim, foreign law, changing societal norms and the detrimental financial and emotional costs of an action of this nature. It concluded that in light of the changing values of our society, the claim based on adultery had become outdated and could no longer be sustained. The Court therefore abolished it.
From a legal point of view both the Supreme Court of Appeal and the Constitutional Court was correct in their findings that a claim against a third party for damages in case of adultery is no longer part of our law. Mr RH’s appeal to the SCA against the judgment of the trial court was originally focused against findings of fact and the application of such facts to the law. The Supreme Court of Appeal having addressed itself in some detail to the evidence adduced at the trial, found that not much reliance could be placed on credibility findings of the trial court which had been biased in its judgment and which had erred in its finding on the facts. Mr DE did not appeal against the SCA’s findings of fact and only directed his intended appeal on a question of principle, namely whether the finding that adultery is no longer part of our law is consistent with constitutional values and norms.
The facts before the Supreme Court of Appeal was inter alia that serious problems existed in the marriage between the Mr DE and Ms H. Mr DE demonstrated a profound lack of love, affection, caring and concern for Ms H’s physical, emotional and spiritual well being. He behaved in an abusive manner towards Ms H. This included evidence on one occasion of a physical assault and on another, of marital rape. Ms H took a decision to end the marriage and she left the matrimonial home with her children on 23 March 2010, having informed Mr DE that she was no longer prepared to continue with the marriage. Evidence led at the trial showed that a romantic attachment had developed between Mr RH and Ms H only after she had left the marital home. It was also common cause that a sexual relationship between Mr RH and Ms H had developed only after the consortium in the marriage had ended.
The delict of adultery was abolished in many foreign jurisdictions such as England, Scotland, Canada, Australia, France, the Netherlands, Germany and most states of the United States of America (which countries have no less regard for the sanctity of marriage than any other parts of the world), have recognized and accepted that the action is not desirable or necessary to protect the institution of marriage.
The origins of the claim are deeply rooted in patriarchy. Originally only a man had the right to pursue a claim against a third party that had committed adultery with his wife. Wives were viewed as mere chattels. And that probably explains why the claim was available only against the third party, and not the wife who – in essence – was a co-wrongdoer. As time went on, South African courts began questioning the discriminatory nature of the claim. Making contentions based on Christian principles of fidelity, which are applicable both to husbands and wives.
The Constitutional Court was of the opinion that love and respect are foundations of a solid marriage and not legal rules. Those are within the control of the spouses themselves. After all, it is they who undertook to be truthful and faithful to each other. The Constitutional Court was further of the view that the obligation pre-eminently rests on the spouses themselves to protect and maintain their marriage relationship. Subject to some cultural variations, love, trust and fidelity are the bedrock on which a marriage relationship is built. Whittle or take that away, the relationship may perish. It is the spouses that must avert anything negative befalling the foundation of their marriage.
The Court was further of the opinion that the he delictual claim is particularly invasive of, and violates the right to, privacy. The Supreme Court of Appeal dealt with the abusive, embarrassing and demeaning questioning that Ms H suffered in the High Court. She was “made to suffer the indignity of having her personal and private life placed under a microscope and being interrogated in an insulting and embarrassing fashion”. Likewise, in order to defend a delictual claim based on adultery, the third party is placed in the invidious position of having to expose details of his or her intimate interaction – including sexual relations – with the adulterous spouse. That goes to the core of the private nature of an intimate relationship.
The court further made the point that our modern day idea of the sacrosanctity of marriage and its concomitant protection by the law are by no means what they were in, say, the times of King Henry VIII, who – because of Roman Catholic tenets, at a time when there was not much separation between church and state – could not even get a divorce and was forced to decree that thence forth the Church of England would be separated from the papal authority of the Roman Catholic Church. Needless to say, he was then free to follow his heart’s desire, although he was excommunicated by the Pope for this conduct. We have come a long way from those strictures and gymnastics. That is because times are changing, and the law – though still recognising the sanctity of marriage – has moved with the times both in its conception of the institution of marriage and the punitive extremes to which it will go to protect it.
Counsel for Mr RH, Advocates Kuny and Ndlokovane, correctly argued that there is a glaring inconsistency in the action for adultery in that it is available against the third party only and not against the adulterous spouse, who is clearly a co perpetrator, and being the party who has promised fidelity, is arguable more legally and morally culpable than the third party. They also argued that the action for adultery is often used by an aggrieved spouse in a divorce action as a weapon in terrorem to exact a settlement which such party might not otherwise be capable of achieving and it often leads to abuse. They also highlighted in argument the obvious difficulties that would arise in determining what constitutes adultery between same-sex partners. It is also arguably not possible to apply the action equally and in a non-discriminatory manner in polygamous marriages which are legally recognised under our constitution and which incorporate asymmetrical concepts of sexual fidelity.
Advocate Dave Smith SC, who appeared for the ex-husband in the high court and in the appeal court, had argued for the important role that a civil claim for adultery played. It sent out a message that marriage was ‘holy’ and that outsiders should not interfere. Adultery was a sin according to all the major religions. He also argued that such a claim was a “release mechanism” that gave the “injured spouse” a legal way of “soothing his or her feelings.”
In his introductory remarks during judgement, Justice Mbuyiseli Madlanga, writing for all members of the court, said the decision was “undoubtedly of historical moment” in South Africa. Chief Justice Mogoeng Mogoeng agreed, but, with Justice Edwin Cameron, he added an additional brief judgment saying that the law had a role in supporting marriage by helping ensure that barriers to family life were removed, but “The rest is in the hands of the parties to the marriage.”v“The law cannot shore up or sustain an otherwise ailing marriage,” he said. “It continues to be the primary responsibility of the parties to maintain their marriage.” “For this reason the continued existence of a claim for damages for adultery by the ‘innocent spouse’ adds nothing to the lifeblood of a solid and peaceful marriage,” the Chief Justice said.
There is no evidence that the action for adultery would deter a spouse in a marriage from committing adultery nor would it deter a third party from committing adultery with a married person. It has long been recognized that adultery is a symptom of the breakdown of the marital relationship and not the cause. In 1978, the Law Commission on divorce, which was responsible for the present Divorce Act 70 of 1979 (introducing the no-fault system of divorce), stated that “Adultery and malicious desertion are for the most part only the ultimate acts which indicate that a marriage has broken down. They are more often the effects of a marriage having broken down than the causes of breakdown”.
Sources: Media Statement and Judgment Constitutional Court and Heads of Arguments of the parties.
Get the judgement here:
Paternity fraud is committed when a mother names a man to be the biological father of a child, for self-interest, when she knows or suspects that he is indeed not the biological father. It happens more often than many of us realise, a woman falls pregnant and is uncertain of who the real father of her child is. Whether she’s married and trying to conceal an affair, or she’d prefer the lover she sees as more reliable to father her child. But to lying about her child’s fatherhood can have a distressing impact on all parties involved. Years may pass, but when the truth comes out the consequences are life-changing.
The need to know one’s own human biological identity is as strong as the need to have your own family. In paternity fraud disputes, there are many potential victims: the non-biological father who pays erroneously maintenance, the child deprived of a relationship with his/her biological father, and the biological father who is deprived of his relationship with his child. Other victims include the child’s and the non-biological father’s families. In particular, financial hardship may have resulted for the non-biological father’s due to the maintenance and child support that he has to pay and his other children and spouse in cases in which the man was forced to make maintenance payments for another man’s child.
In a recent case in the UK a father was at the centre of a case of paternity fraud after he was tricked into raising another man’s child as his own for 6 years. In this case the Judge ruled that the man’s ex-wife could not be forced to hand back tens of thousands of pounds in maintenance payments even though they were the result of “fraud”. The man was cheated by his ex-wife, into believing that the baby she conceived through fertility treatment at a clinic in Spain was his child. In fact, the child, was the product of a sperm sample provided by her former boyfriend instead of one he had given. The judge in the case ruled that the man had been the victim of “clear deceit and fraud” and ordered his ex-wife to pay him £10,000 in damages for emotional harm, as well as refunding some housing expenses and paying legal bills – which came to about £100,000 in total. The court did not order her to pay back the £60,000 she received in child maintenance from the man after they separated – even though the court found she must always have known he was not the real father. Case law determined that child maintenance cannot be recovered in such cases. Crucially, the finding in his favour does nothing to bring back the son he once had.
In a recent case in the United States a woman found out that her twins had been fathered by two different men in a paternity case. The woman was applying for public assistance and named her romantic partner as the father of both children. In the course of her testimony in court, she admitted to sleeping with a different man about a week after she believed she had conceived the twins with her partner. This prompted a paternity test, which revealed that each man had fathered one of the twins. The original partner was then ordered to only pay child support for one of the children. This kind of occurrence is rare, but not unheard of a doctor who testified in the case gave evidence that 1 in 13,000 paternity cases for twins involve two different fathers.
Studies that was conducted in Australia has shown that between 10% and 16% of the general population are victims of paternity deceit. In Australia, mothers are being forced to pay back thousands of dollars to men they wrongly claimed fathered their children following a contentious reform of child support laws. The Australian face of paternity fraud is a Melbourne man named Liam Magill. In 2002, Magill’s ex-wife Meredith was ordered to pay him $70,000 for general damages and the economic loss he suffered as a consequence of her false declaration that he was, as one newspaper report put it, the biological father of “her lover’s children”.
In the UK, single mothers are deliberately naming the wrong man as the father of their children when making maintenance claims. Child Support Agency figures show that nearly 1 in 5 of the contested paternity claims it handled cleared the man originally named as the father. Its figures for 2007-2008 show that out of 3,474 DNA paternity tests ordered, 661 (19%) named the wrong man. Government-approved DNA testing kits, have exposed 4,854 false paternity claims since records began in 1998-99. A British survey conducted between 1988 and 1996 confirmed the 10% figure. A recent poll in the UK on a survey on attitudes to truth and relationships has found that 19 out of 20 women confess lying to their partners or husbands. 83% owned up to telling “big, life-changing lies,” with 13% saying they did so often. Half said that if they became pregnant by another man but wanted to stay with their partner, they would lie about the baby’s real father. 42% would lie about contraception in order to get pregnant, no matter the wishes of their partner.
In the United States it is alleged that almost 30% of DNA paternity tests, excluded the man as the father of the child in question. The exclusion rate however includes a number of factors. One is a woman may allege several men as possible fathers because she was sexually active with these individuals. These are not men who were misled into believing they were fathers and then later discover they are not. The testing merely sorts out which man is the biological father and excludes the others.
In 2012, a woman was arrested in KwaZulu Natal after a mother told a Durban regional court magistrate that she had handed over R65 000 to the woman who was a Facebook friend she had never met who was supposed to be helping her to manipulate a paternity test. The mother wanted the test to reflect her present boyfriend as the biological father of her six-month-old baby, not the real father who she considered “unstable”. The mother who pleaded guilty to attempted fraud and received a 3 year suspended sentence, testified that the woman had initially asked for R1 500 but, thereafter kept on demanding more money, not only for herself, but for “blackmailers” who wanted money for their silence and others including two magistrates who were said to be helping her. Sick of “living a lie” the mother then went to the police. The woman pleaded guilty to five charges of fraud, forgery, uttering, extortion and crimen injuria and was sentenced to 5 years imprisonment.
Issues regarding paternity have been dealt with in a number of cases in the South African Courts. The South African Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock (parties who were not married to each other). The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.
In 2010 in the case of YM v LB 2010 ZASCA 106 our Supreme Court of Appeal (SCA) was given an opportunity to provide judicial clarity on the law relating to court-ordered blood testing of potential parents refusing to voluntary submit themselves (and/or the minor child) to such testing, but the Court most unfortunately elected to side-step the issue based on the facts of the matter. It is not suggested that the court was wrong in its final decision, but it was hoped that it would provide guidelines as to this issue of compelling adults and children to undergo blood tests to determine paternity. In this case the court of first instance ordered the parents and child to undergo paternity testing, the decision of the court was then taken on appeal. The issue had been unclear for about 30 years and certainty regarding the obligation and power of the court to order such tests against the wishes of one of the parties would have been valuable. It was indeed a missed opportunity to clarify the law once and for all. The SCA found that where the paternity of the child has been shown on a balance of probabilities, scientific tests on a child should not be ordered. In this matter paternity was not really in dispute as both parties (at various times before the attorneys joined the show) believed that the man in question was the father of the child. The mother’s maternity was obviously never in doubt. The court also stated that as paternity is determined on a balance of probabilities, the man is not entitled to demand scientific proof and that in relevant instances, the court has the inherent power as upper guardian of all minor children to order such tests if it is in the best interests of the child. The SCA also noted that the rights of privacy and bodily integrity may be infringed if it is in the best interests of the child. However, it confirmed the statement made by a judge in an earlier case that it may not always be in an individual’s best interest to know the truth. The court noted that in some cases it may be justified to order tests, but that the discovery of the truth should not be generalized.
The basis of a paternity matter is that the applicant will have to show that such a test would be in the best interest of the child. This in itself is extremely difficult as there seems to be no research done in South Africa as to the impact on a child that learns, at a much later stage, that his/her presumed father was not the biological father. One may argue that paternity testing may have a negative short-term impact on the family as it may reveal relationships that were previously unknown. After all, it has been acknowledged that from a broader family perspective, family genes are considered to be a valued possession passed down in a family through succeeding generations.
Would it be better not to know the truth or to keep the truth from a child at any age and one wonders whether this is indeed in the interests of a child? In disputed paternity claims the emotional trauma of uncertainty definitely taints the relationships between the parents and sometimes also the relationships between the probable father and the child. Trauma such as this can be easily be resolved through testing.
Section 37 of our Children’s Act states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility. The problem is that the section does not go far enough and does not resolve the main issue, namely the truth about the paternity of the child.
The unreported case of Nel v Jonker (WCHC) case number A653/2009 was the first reported judgment dealing specifically with misattributed paternity. The ex-husband had regarded the child, born four months into his marriage with the mother, as his biological child and had maintained her as such. Only 16 years after the birth, and 10 years after the divorce, did he discover through DNA testing that the child had actually been fathered by another man. The maintenance court varied the divorce order by deleting his (future) maintenance obligations towards the child since he was not the biological father of the child. The court of first instance subsequently awarded damages to the cuckolded ex-husband for the R50 000 that he paid towards the child’s maintenance since the divorce. This order was taken on appeal. On appeal the Judge overturned the damage award that the maintenance court granted to the ex-husband. The ex-husband argued that he supported the child in the bona fide and reasonable belief that it was due and payable. The Judge found that the ex-husband did not meet all the requirements of the claim, specifically, his error in paying maintenance was found to be unreasonable and that there was no proof that the mother of the child was enriched by the maintenance payments. In adding, the court noted that prescription could have reduced his claim, but as it was not pleaded it was not necessary to consider. With regard to considerations of public policy the court did not find it necessary to make a final decision in this regard. The reading of the case leaves one with a feeling of dissatisfaction because the set of facts was not ideal to deal with this complex issue, and partly because of the fact that the pleadings and evidence were deficient, making a precedential judgment on misattributed paternity impossible.
What is disturbing is the fact that it is impossible to accurately estimate just how widespread paternity fraud is. One may assume that there are a plethora of men in South Africa who are currently raising another man’s child, blissfully unaware of the devastating truth. For each of these men, the truth will only be revealed if the woman who duped them decides to confess, or for some reason, a paternity test is taken. Looking at jurisdictions around the world, there are various ways to deal with the question of refunding of the maintenance payments. On the one side of the scale certain jurisdictions by legislation deny such an action mostly on the best interests of the child. It has also been argued that where a man accepts fatherhood, he cannot recant his fatherhood merely based on the fact that he is not the biological father – fatherhood after all comprehends much more than just biology. In other jurisdictions legislation and the courts provide for a re-claim of maintenance contributions. Which side of the scale South African courts will lean towards in future remains to be seen.
A last question that can be asked is whether the mother of a child can be prosecuted for the crime of (paternity) fraud or whether public policy should exclude this possibility? Fact is that it remains fraud and such actions should be prosecuted. The scenario is becoming more common around the world and also in South Africa. With DNA tests becoming cheaper and more available, the courts or the legislature will have to deal with this problem soon.
KLVC v SDI and Another  1 All SA 532 (SCA)
Section 21(1)(b) of the Children’s Act 38 of 2005 (the Act) provides, that an unmarried father of a child, regardless of whether he has lived or is living with the mother of the child, acquires full parental rights and responsibilities over the child if he –
‘(i) consents to be identified or successfully applies to in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
(ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period’.
In KLVC v SDI and Another  1 All SA 532 (SCA) the issue the court had to deal with was whether the father, had satisfied the requirements of the section and accordingly acquired full parental rights and responsibilities over his minor child. During the father’s temporary trip overseas, the mother relocated the four-month-old minor from Durban to the UK without the consent of the father or authority of a court. As a result the father instituted proceedings in a UK court for return of the child to South Africa. The UK court was unable to decide if the removal of the child from South Africa was wrongful in that it was done without the required consent of the father or authority of court. It accordingly referred the question for determination by a South African court.
The High Court found that the father had satisfied the requirements of the section and accordingly acquired full parental rights and responsibilities over the minor child. The mother then appealed but her appeal was dismissed with costs by the Supreme Court of Appeal.
The Supreme Court of Appeal judges held that determining whether or not an unmarried father had met the requirements of the section was an entirely factual enquiry. It was a type of matter, which could only be disposed of on a consideration of all the relevant factual circumstances of the case. An unmarried father either acquired parental rights or responsibilities or did not. Judicial discretion had no role in such an enquiry. The concept of a contribution or attempt in good faith to contribute to the child’s upbringing for a reasonable period was an elastic one, which permitted a range of considerations culminating in a value judgment as to whether what was done could be said to be a contribution or a good faith attempt at contributing to the child’s upbringing over a period which, in the circumstances, was reasonable.
In this case the father had demonstrated sufficiently that he had acquired full parental responsibilities in respect of the minor. As co-guardian, his consent was required prior to the removal of the child from South Africa by the mother. By removing the minor without such consent the mother acted in breach of the father’s parental rights and responsibilities.
Divorce is never easy, especially when there are children involved. Occasionally there will be a tale of divorced couples who amicably share the care of their children and who are successful in raising children who are psychologically sound and happy. If you are lucky to have a reasonable ex-partner, an amicable resolution can be reached. But there are times when the opposite occurs and where one parent alienates a child from the other.
Brian’s story, obtained from a Facebook post:
“I have been alienated from my children now for nearly 5 years, believe me, it gets harder each and every day. Yet, as a dedicated and loyal father I pay my maintenance on a monthly basis, give my ex an annual increase, all of this for 2 children I do not see. People say that when they are older they will come back into my life. By that time we will be strangers to each other. By that time the children can be so brain washed, that their decision is based on fear. Parental alienation is actually not the correct term, as the child or children are isolated not only from the one parent, but from an entire family. My ex allows my children no contact with my parents, or relatives like uncles, aunts, cousins etc. Where does one draw the line? I was the one facing countless false accusations. It was a constant barrage. You put out one fire out only to be confronted by the next accusation the next week. After spending millions of rands over several years, you eventually throw in the towel. It is either that, going insolvent or suicide. Those are the choices you have. I threw in the towel, but was not far away from suicide. Surely the legal system should find out why a former spouse denies the entire family of her former husband access to the children. Surely they cannot all be evil and bad people. Unfortunately the legal and justice system failed me”.
In a recent matter before the High Court in Pretoria Judge Peter Mabuse sent a clear message to parents who alienate their children from the other parent, the honourable Judge stated:
“It is humanly incomprehensible why one parent would refuse the other parent the right of access to their own child. “In my view – and here I am not laying down any general principle – a parent should encourage frequent contact between their children and parents”
In a recent case in the UK, High Court Judge Mrs Justice Parker made the following remark:
“Parents who obstruct the relationship with either mother or father are inflicting untold damage on their children and it’s about time the professionals truly understood this. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful”.
Parental alienation is a phrase often used in the context of high conflict divorce or separation. A key feature of parental alienation is a child’s strong alignment with one parent whilst rejecting a relationship with the other, despite a prior normal, loving, warm relationship. In countries such as Brazil and Mexico it is a crime to alienate a parent from his/her children.
Examples of parental alienation are:
to carry out campaigns for disqualifying a parent’s behaviour upon exercising his/her parenthood;
to obstruct the exercise of parental authority;
to obstruct the contact between a child or adolescent with one of their parents;
to obstruct the legal right to exercise family life;
to deliberately withhold from a parent relevant personal information on the child or adolescent, including school-related, medical, and address changes;
to file false charges against a parent, their family members, or against grandparents;
to obstruct or prevent their presence in the child or adolescent’s life;
to change residence to a distant place, without justification, in order to make it difficult for the child or adolescent to live with the other parent, their family member, or grandparents.
In the Australia in the case of V versus V the Court was faced with a situation where the mother unilaterally and unreasonably denied a father access to his children. After constant litigation between the parties over a period of 4 years involving 17 court orders and directions of some 16 judges the Court eventually, indicated that it was time that the litigation should be brought to an end for the sake of the children and transferred residence of the children to the father. The Judge made the following remark in this case:
“Unfortunately the courts at all levels are well accustomed to intractable contact disputes which drag on for years with little or anything to show for the outcome except numerous court hearings, misery for the parents, who become more entrenched in their positions, wasted court resources, and above all serious emotional damage to the children. These disputes are expensive, ….. They take up a disproportionate amount of time in court, thereby depriving other cases of timely hearing. Constant litigation in respect of residence and/or contact is not only destabilising for parents and children who become a battleground to be fought over at any cost, but it is a process which progressively results in entrenched attitudes as if engaged in a war of attrition. There is also a perception that courts allow parents with care to flout court orders for contact and permit the parent with residence to exclude the parent from the lives of the children so that the other parent is worn down by years of futile litigation which achieves nothing and only ends when the parent gives up the struggle, or the children are old enough to make their own decisions, assuming they have not been brainwashed in the meantime.”.
Dr Craig Childress, a US psychologist and expert in the field of parental alienation explains parental alienation as a situation in which one parent consciously or subconsciously turns their shared children against the other parent, through various means of manipulation. It often involves the premise that one parent falsely accuses the other of abuse and indoctrinates the child into believing that abuse took place, whether it be mental, physical, sexual, or a combination.
While there are many true cases of abuse, what is key according to Dr Childress is to look at the child’s behaviour. “It’s the child’s behaviour that need to be observed. Unnecessary levels of anxiety or fear of the alienated parent can be a sign.” Eventually, children can become so indoctrinated and eager to please who they view as the “powerful parent,” they may start hating or abusing the targeted parent themselves. According to Dr Childress, parents who indoctrinate children into alienating the other parent are linked to narcissist borderline pathogenic parenting. The symptoms of narcissism include: grandiosity, entitlement, absence of empathy, haughty, arrogant behaviour and delusional belief systems.
Researcher Amy Baker says that parents who try to alienate their child from the other parent subtlety, or not so subtlety gives a three-part message to the child. She says:
“I am the only parent who loves you and you need me to feel good about yourself; the other parent is dangerous and unavailable; and pursuing a relationship with the other parent jeopardizes your relationship with me.”
Despite recognition in some of our high court judgements, parental alienation is poorly understood and rarely acknowledged in our family justice system. Whilst there is recognition of the long term psychological impact on the child, there is little research into the sense alienated parents make of their lives when being rejected.
In many cases before our courts alienated parents are subjected to false allegations of domestic violence against their ex-spouse or partner, false allegations of physical, emotional, sexual, abuse or neglect against their child. In Family law proceedings in South Africa, a child’s best interests is paramount and therefore allegations of abuse generally result in the instant interruption of direct contact with the child while fact finding, safeguarding and clinical assessments are undertaken. It goes without saying that parents who are then unable to see their child experience a presumption of guilt and a need to prove their innocence.
The legal process in determining the trust of such allegations is time consuming. The absence of direct and meaningful contact during this period often prolongs the alienation, making meaningful relationships more difficult and unlikely. One of the key determinant factors in the perpetuation of the alienation process is “time since last direct contact” according to Dr Fiona Fidler an Australian psychologist.
The lack of power that alienated parents experience is found in their experiences with, and opinions of our legal system. There is a belief that the legal process is itself helpless, powerless or unwilling to enforce the repeatedly broken contact orders which it has sanctioned.
Research presented by Dr Sue Whitcombe to the Annual Conference of the British Psychological Society’s Division of Counselling Psychology in London found in a study of 54 parents that have been alienated from their children that they initially had direct contact with their child when their relationship broke down but that contact broke down at a later date. 94% participants had engaged in family law proceedings in the courts regarding their children and 70% reported that their ex-partner repeatedly broke one or more of the court orders in place. As such, many parents feel that their former partner holds all the power. 78% of these parents had not seen their children for more than a year and 72% of the children had been cut off completely from the alienated parent’s extended family.
Dr Whitcombe also found that there was a “lack of knowledge and understanding” about parental alienation and this resonated from her own experience when raising the topic with mental health professionals, practitioner psychologists, colleagues in social care and education. It therefore goes without saying that a failure to recognise an alienation dynamic, and differentiate it from justifiable estrangement leads to inappropriate therapeutic or judicial intervention, with potentially long term detrimental repercussions for the families and individuals concerned.
According to Dr Childress the only way to deal with a parent who alienates a child from is to obtain the child’s protective separation from the borderline alienating parent. Until one obtain this protective separation, efforts to restore the child’s authentic affectionate bonding will simply lead to the child’s further triangulation into the “spousal” conflict because of the increasing psychological pressure placed on the child by the alienating parent to maintain the child’s symptomatic rejection of the other parent, thereby turning the child into a psychological battleground.
Childress uses the image of a “hostage situation” with a psychologically disturbed and highly controlling narcissistic parent, who can unleash an intense anger and rejection toward the child if the child dares to deviate from the parentally desired responses. He believes that unless one is able to free the child from this hostage situation, one cannot reasonably ask the child to go against the will of the personality disordered “hostage taker” because of the excessive degree of psychological torment the child will be subjected to if the child does show an affectionate bond with the target parent.
Childress also believes that to convince the child to show affectionate bonding towards a targeted parent the alienating parent will increase the psychological pressure on the child to remain symptomatically rejecting the targeted parent. This essentially according to him turns the child into a psychological battleground which will destroy the child. He says further that to begin to restore the child to balanced and normal-range functioning, one must first protect the child from the distorted and pathogenic parenting of the personality disordered alienating parent. No qualified therapist according to him should attempt “reunification therapy” without first obtaining a protective separation of the child from the distorting pathogenic influence of the narcissistic-borderline personality disordered parent.
Essentially, the situation represents the Judgment of Solomon. Two women came before Solomon, each claiming that a baby was theirs. Solomon ordered the child cut in half, and that half be given to each woman. The child’s true mother intervened and told Solomon not to cut the baby in half, but to instead give the child to the other woman. Solomon recognized this woman to be the child’s true mother since she was willing to give up the child rather than see the child destroyed, and Solomon awarded the child to the true mother.
In attachment-based “parental alienation”, the personality disordered narcissistic borderline alienating parent is entirely willing to psychologically destroy the child rather than see the child bond with the targeted parent. Any steps to restore the child’s normal range and balanced functioning, will increase the psychological pressure on the child to remain symptomatic, and the narcissistic-borderline parent is willing to psychologically destroy the child in the process if it is necessary to prevent the child from forming an affectionate bond with the alienated parent.
The sad reality is that in many instances an alienated parent is unwilling to psychologically destroy the child and placed in a position where such a parent relinquish the child to the psychologically disturbed, personality disordered parent, the emotionally and psychologically false parent, because the alienated parent is unwilling to “cut the child in half.”
Unfortunately the wisdom of our legal system often fall short in recognizing a child’s true psychological and emotional parent, the parent who is relinquishing the child (i.e., is being rejected and abandoned by the child) because this parent is unwilling to destroy the child in order to possess the child. The time has come for our courts to recognize the false parent, the narcissistically self-absorbed parent who is willing to psychologically and emotionally destroy the child in order to possess the child as a narcissistic object and symbol of his or her narcissistic victory over the other parent.
Regrettably, this level of sophisticated wisdom is far too often lacking from the Court. Childress makes a valid point and believes that the wisdom of our Courts is dependent upon the wisdom provided from mental health in identifying the underlying pathology, and currently our mental health practitioners are woefully inadequate in reliability identifying the pathology associated with attachment-based “parental alienation.” According to him the Courts’ wisdom is lacking because: “…mental health has failed in its responsibility to the targeted parent and child. The mental health response to attachment-based “parental alienation” needs to change dramatically before Courts will be able to act with the decisive clarity necessary to solve the tragedy of parental alienation.”
It is clear that the biggest challenge currently facing targeted parents and children is that many mental health professionals either are not aware of, or don’t fully understand, parental alienation. Educating legal and mental health professionals about parental alienation is a critical step in helping parents and children overcome the actions of an alienating parent. If we don’t recognise this, our children and their parents will continue to suffer.
My heart goes out to the many good parents out there, who suffer as a result of alienation.
Compiled by Bertus Preller
Family Law Attorney at Bertus Preller & Associates Inc. Cape Town
Tel: +27 21 422 2461
The murder of teacher Jayde Panayiotou’s has highlighted yet again the incidence of Domestic Violence in South Africa. One of the most common forms of violence against women is that performed by a husband or intimate male partner. Although women can also be violent in relationships with men, and violence is also found in same-sex partnerships, the overwhelming health burden of partner violence is borne by women at the hands of men.
Intimate Partner Violence accounts for almost 63% of the overall interpersonal violence burden on females. More women are killed by their current or ex–intimate male partner in South Africa than in any other country with a rate of 8.8 per 100 000 women. In a study of 1 229 married and cohabiting women, a prevalence of 31% intimate partner violence was found and a study on physical violence among South African men found that almost 28% reported perpetration of violence in their current or most recent partnership. In South Africa, a woman is killed by domestic violence on average roughly every eight hours and the rate of intimate femicide, the killing of women by their partners, is five times higher than the global average.
To put that figures into perspective, there are more than seven times as many murders in South Africa than there are for example in the United States and South Africa has a population of just 51 million compared with the 317 million population in the United States. Statistically speaking, Panayiotou, (if her husband was involved in her killing) was one of three women killed by an intimate partner on the day she died in the country.
Intimate partner violence includes acts of physical aggression, psychological abuse, forced intercourse and other forms of sexual coercion, and various controlling behaviours such as isolating a person from family and friends or restricting access to information and assistance.
In 2012, Interpol labelled South Africa the "rape capital" of the world. Still, less than 1% of rape cases are reported to the South African Police Services. In 2013 the Washington Post reported that South African Police stations were running out of rape kits, which are needed to collect evidence.
It is difficult to get trustworthy statistics on violence against women in South Africa. Although the number of reported cases is very high, many cases go unreported. The incidence of domestic violence is difficult to measure since the police do not keep separate statistics on assault cases by husbands or boyfriends. When the South African Police Service reports on crime statistics each year, it does not say how many of these crimes were committed in the context of domestic violence. Very little can therefore be gathered from the South African Police Services analysis of the crime statistics, which for example only show common assault to have declined while assault with intent to cause grievous bodily harm has decreased.
Intimate partner violence is the most common form of violence experienced by South African women, according to the South African Stress and Health (SASH) survey. Such violence was reported by about one in eight women (13,8%) in the study and by 1,3% of men.
Violence by an intimate partner has been linked to many immediate and long-term health outcomes, including physical injury, gastrointestinal disorders, chronic pain syndromes, depression and suicidal behaviour.
The South African Domestic Violence Act of 1998 includes, physical abuse, sexual abuse, emotional, verbal and psychological abuse, economic abuse, harassment, damage to property, entry into the complainant’s residence without consent, where the parties do not share the same residence or any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or well-being of the complainant.
During 2009 - 2010, 291,546 people applied for a protection order in South Africa. 58.2% protection orders were and 21.2% withdrawn. In a study an analysis was done of 600 applications for protection orders from three magisterial jurisdictions in the Western Cape. It was found that 78% of applications were brought by women against men. The highest prevalence of domestic violence in South Africa has been reported in the Limpopo Province. Of the women and men who applied for an interim protection order in the Western Cape (depending on the different population groups) 62–73% reported physical violence, 89.5–100% verbal abuse, 57.1–61.5% psychological/ emotional abuse, 21.4%–38.2% economic abuse and 7.1–11.4% sexual abuse.
It goes without saying that South Africa has a serious problem when it comes to Domestic Violence. The unhelpful police statistics needs to be addressed urgently. While it may not be legally practicable to create one crime of domestic violence (given the diverse acts), it should be possible for the police to record the relationship between the offender and victim and to routinely report on this. In South Africa we have a National Register for Sex Offenders, maybe the time has arrived to implement a National Register of Domestic Violence Offenders.
Bertus Preller - Family Law Attorney
Bertus Preller & Associates Inc.
T: +27 21 422 2461
WT & others v KT (933/2013) ZASCA 9 (13 March 2015)
The Supreme Court of Appeal handed down judgment in a case concerning whether assets of a discretionary family trust form part of the joint estate of parties married in community of property.
W (the plaintiff in the court below and the first appellant) who was married to K (the defendant in the court below and the respondent) in community of property, instituted divorce action in the Gauteng Local Division, claiming a decree of divorce as well as ancillary relief. Whilst K did not oppose the decree of divorce sought by her husband, she filed a counterclaim relating to the extent of the assets of their joint estate. In her counterclaim, K claimed that assets of a trust established prior to the marriage formed part of the joint estate of the parties.
K’s contention that assets of the trust formed part of the joint estate was based on:
(a) W deceiving her.
(b) The trust being W’s alter ego.
The high court found in favour of K that the joint estate included the assets of the trust. On appeal, the SCA held that there was no evidence supporting K’s contention of W’s deception. The SCA further held that K’s belief that she would be an equal owner of the matrimonial home, which had been registered in the name of the trust, was not corroborated and was improbable given the undisputed evidence relating to establishment of the trust.
Get the full judgement on the link below:
The case of M v B (10175/2013)  ZAKZPHC 49) concerned an application for an interdict restraining the respondent from posting further defamatory postings about the applicant on her Facebook page.Earlier decisions by Satchwell J in Dutch Reformed Church Vergesig & another v Sooknunan 2012 (6) SA 201) (GSJ) and Willis J (as he then was) in H v W  2 All SA 218 (GSJ) contain a comprehensive description of the various terms associated with social networking and Facebook.
The parties involved in the present application, RM, the applicant and the father of the child, and RB, the respondent and the mother of the child, had been in a relationship. They were the biological parents of a five-year-old daughter. The applicant and respondent were never married. The child stayed with the respondent. In terms of an arrangement the applicant had contact with his daughter every alternate weekend. After one such weekend the respondent made certain postings on her Facebook page relating to the applicant’s care of their daughter and referring to the use of alcohol and drugs.
A Facebook debate ensued with many of the respondent’s Facebook ‘friends’ critical of the applicant’s behaviour. At the time of the posting the respondent had 592 ‘Facebook friends’. The applicant alleged that the postings had defamed him as a father and were detrimental to his business reputation. He approached the High Court for an urgent interdict ordering the respondent to –
(a) remove the messages from her Facebook page;
(b) refrain from posting further defamatory statements about him on her Facebook; and
(c) refrain from publishing defamatory statements about him in any other way.
Satisfied that a prima facie case had been made for relief, the court granted a rule nisi as prayed for. In the application for final relief the main area of dispute concerned the ability of the court to restrain material not yet known to the court as per (b) and (c) above.
Chetty J pointed out that other than a denial that the postings were defamatory, the respondent did not make out any argument of the public interest in respect of the statements attributed to the applicant. The rule nisi had therefore to be confirmed in respect of prayer (a).
The court held that not every defamatory statement about the applicant by the respondent would be actionable. If she were to repeat her conduct in the future and make derogatory or defamatory statements about him, the applicant could always approach the court for relief in the form of an interdict or sue for damages. The court further held that despite the possibility of defamatory postings on the internet posing a significant risk to the reputational integrity of individuals, to have granted the relief sought in prayers (b) and (c) above, would have been too drastic a limitation and restraint on the respondent’s freedom of expression. The court accordingly dismissed prayers (b) and (c).
As a case had been made on the papers by the applicant for the first part of the rule nisi it was accordingly confirmed. The respondent was ordered to pay the costs of the application.
Financial Services Laws General Amendment Act changes: Living Annuities and divorce
Section 37D(1)(d) of the Pension Funds Act previously permitted for deductions (in terms of a divorce order as contemplated in section 7(8) of the Divorce Act) to be made from the member’s benefit or minimum individual reserve.
The section was recently amended by the Financial Services Laws General Amendment Act. As of 28 February 2014, Section 37D(1)(d) of the Pension Funds Act states that a registered fund may:
"deduct from a member’s or deferred pensioner’s benefit, member’s interest or minimum individual reserve, or the capital value of a pensioner’s pension after retirement, as the case may be – ”
What is the effect of the amendment?
The effect is that the deductions in section 37D in respect of maintenance and divorce orders as well as income tax have been extended to the "member’s interest and capital value of a pensioner’s pension after retirement”.
The question now really is whether "capital value of a pensioner’s pension after retirement" includes annuities purchased post-retirement, like an Investment-Linked Living Annuity (ILLA). If so, does this mean a non-member spouse may now claim from such annuities as part of a divorce order? The answer is no if regard is had to the below:
1. Pension Funds Act 24 of 1956
As a general rule a fund may only make a deduction from a member’s benefit if such a deduction is permitted in terms of the Pension Funds Act, the Income Tax Act and the Maintenance Act. This general rule however has exceptions as set out in section 37D.
Section 37D(1)(d)(i) now reads that a registered fund may deduct from "a member’s or deferred pensioner’s benefit, member’s interest or minimum individual reserve, or the capital value of a pensioner’s pension after retirement as the case may be) any amount assigned from such benefit or individual reserve to a non-member spouse in terms of a decree granted under section 7 (8) (a) of the Divorce Act, 1979 (Act No. 70 of 1979)”.
The key terms (underlined above) are defined in the Pension Funds Act as follows:
· "Deferred pensioner” is defined as a member who has not yet retired but left the service of the employer concerned prior to normal retirement date leaving in the fund the member’s rights to such benefits as may be defined in the rules.
· "Member” is defined as meaning, in relation to --
- a fund referred to in paragraph (a) of the definition of "pension fund organisation”, any member or former member of the association by which such fund has been established;
- a fund referred to in paragraph (b) of that definition, a person who belongs or belonged to a class of persons for whose benefit that fund has been established,
(a) but does not include any such member or former member or person who has received all the benefits which may be due to him from the fund and whose membership has thereafter been terminated in accordance with the rules of the fund;
· "Pensioner” is defined as meaning a person who is in receipt of a pension paid from the fund.
Once a member retires and purchases a member owned annuity, he is no longer a member of the fund – he has effectively received all the benefits which may be due to him from the fund and his membership will thereafter be terminated in accordance with the rules of the fund.
Moreover, the words "the capital value of a pensioner’s pension after retirement” explicitly refers to "pensioner”, which in turn refers to the fund.
Even if you argue that this aims to include a pension paid by the fund (i.e. a fund owned annuity), where the fund still has commitments to the member, it would still not have any force or effect until the definition of "pension interest” in the Divorce Act is amended to include this.
It’s also interesting to note that section 37D(6) of the Pension Funds Act has been amended only to add the reference to "deferred pensioners”:
"(6) Despite paragraph (b) of the definition of "pension interest” in section 1 (1) of the Divorce Act, 1979 (Act 70 of 1979), the portion of the pension interest of a member or a deferred pensioner of a pension preservation fund or provident preservation fund, that is assigned to a non-member spouse, refers to the equivalent portion of the benefits to which that member would have been entitled in terms of the rules of the fund if his or her membership of the fund terminated, or the member or deferred pensioner retired on the date on which the decree was granted.”
2. Divorce Act 70 of 1979
Section 7(7) of the Divorce Act provides that a 'pension interest' (as defined in section 1) will be deemed to be a part of the assets at divorce:
"7) a) In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to paragraphs (b) and (c), be deemed to be part of his assets”
The wording of section 7(7) makes it clear that the non-member spouse is only permitted to a portion of the member spouse’s notional benefit if it qualifies as "pension interest” as defined.
"Pension interest” is defined in section 1 as referring to the benefits to which such member would have been entitled in terms of the rules of the fund if his membership of the fund would have been terminated on the date of the divorce on account of his resignation from his office, i.e. the member spouse must still hold a pension interest in the fund as at the date of divorce.
If a resignation benefit had already become payable to him before the divorce, he could not again be deemed to become entitled to a resignation benefit at the date of divorce. He would therefore no longer have a "pension interest” for the purposes of sections 7(7) and 7(8) of the Divorce Act read together with section 37D(4)(a) of the Pension Funds Act.
The Financial Services Law General Amendment Act has not made any amendments to the definition as quoted above and ccordingly, annuities purchased post-retirement remain excluded.
It might have been the intention of the legislature to close the "loophole” whereby someone can retire from a fund and purchase an annuity thereby effectively excluding it from the scope of section 7(7) and 7(8) of the Divorce Act. However, until the definition of "pension interest” in section 1 of the Divorce Act is accordingly amended, the changes will not affect annuities purchased upon retirement.
The primary issue between the parties had been whether the law of Mauritius or of South Africa governed their proprietary rights upon divorce. Put simply, the proper law of the marriage had to be determined.
The parties were married to each other on 29 June 1983 in Mauritius. A month later they moved to South Africa and continued to live here until their divorce in November 2011. In about July 2006 the respondent, the wife (plaintiff in the court below) sued the appellant, the husband (defendant in the court below) for divorce in the South Gauteng High Court, Johannesburg, contending that the marriage relationship between her and the respondent had irretrievably broken down.
In her particulars of claim the plaintiff alleged that at the time of her marriage to the defendant he was domiciled in Mauritius and that the proprietary consequences of the marriage ‘are governed by the law of Mauritius’, alternatively, that the parties were married to each other in Mauritius according to the laws of South Africa and that the proprietary consequences of the marriage ‘are accordingly governed by the law of South Africa’. On either basis, she alleged that during the subsistence of the marriage she had contributed to the maintenance and or increase of the husband's estate by the rendering of services and the saving of expenses, which otherwise would have been incurred. She listed the contributions she had made in cash and in kind. She claimed that it was just and equitable that her husband be directed to transfer to her such part of his assets so as to effect an equal division between the parties of their combined net asset values, alternatively, that he pay to her the monetary equivalent thereof. In a further alternative she claimed that the parties were married according to South African law in community of property.
In his plea the husband pleaded that at the time of their marriage he and his wife had agreed that their matrimonial regime would be governed in terms of the provisions of Mauritian law, and in particular in terms of the provisions of the regime legal de separation de biens - separation of goods. The husband pleaded that at the time of the marriage, he and his wife had made a declaration that their marriage was to be governed by the regime legal de separation de biens which was recorded by a marriage officer. The husband pleaded further that in terms of the said regime each party retains its separate estate during the marriage and on dissolution thereof, neither party has a claim against the estate of the other party.
At common law, the proprietary rights of spouses are governed, in the absence of express agreement, by the law of the husband’s domicile at the time of the marriage (lex domicilii matrimonii or the law of the matrimonial domicile) (Frankel’s Estate & another v The Master & another 1950 (1) SA 220 (A) at 241; Sperling v Sperling 1975 (3) SA 707 (A) at 716F-G; Esterhuizen v Esterhuizen 1999 (1) SA 492 (C) at 494C-D; C F Forsyth Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts 5 ed 2012 at 295). The rationale for this rule, according to the Roman Dutch and Civilian authorities, is that the parties are assumed in the absence of any indication to the contrary, to have intended to establish their matrimonial home in the country where the husband was domiciled at the time of the marriage and to have submitted themselves to the matrimonial regime obtaining in that country.
This court assessed the evidence and determined that, at the time of his marriage, the appellant had in fact been domiciled in Mauritius, and accordingly that Mauritian law governs the proprietary regime of the marriage. In analysing Mauritian law, this court held that the separation of goods regime provides that each party to a marriage retains its separate estate during the marriage, and that on dissolution thereof neither party has a claim against the estate of the other unless they have funded the acquisition of particular assets in the other party’s estate, to which they would then be entitled a share. However, as in this matter there is insufficient evidence to show that the respondent contributed to the acquisition of either of the properties of which she sought a share, she has not made out a claim to either of them. Accordingly, the appeal is upheld with costs, and the respondent’s claim for 50 per cent of the value for the properties concerned is dismissed.
In terms of the Pension Funds Act, No 24 of 1956 and the Government Employees Pension Law Amendment Act, No 21 of 1996, the pension interest is payable at the time of divorce. This is known as the 'clean-break' principle).
Until recently, however, a payment governed by the Post Office Act is only payable upon termination of membership by the member in the fund (through death, retirement or resignation).
In the decision of Ngewu and another v Post Office Retirement Fund and others  1 BPLR 1 (CC), the Constitutional Court had to decide when pension benefits accrue to divorced spouses where Mrs Ngewu was married to a Post Office employee who was a member of the Post Office Retirement Fund. It was common cause that Mrs Ngewu was entitled to a 50% share of her husband’s pension interest. However, under the rules of the Fund, her share would not accrue upon divorce but only when Mr Ngewu terminated his membership in the Fund.
All parties agreed that the Post Office Act, No 44 of 1958 was unconstitutional in so far as it did not provide for the payment of the pension interest at the time of divorce.
The Constitutional Court held that this differentiation violated the right of equality before the law and equal protection and benefit of the law. Consequently, the Constitutional Court declared s10 to 10E of the Post Office Act unconstitutional but ordered that the declaration of invalidity be suspended for eight months for the legislature to cure the defect. The defect was subsequently cured in terms of the Government Employees Pension Law Amendment Act.
As a result of the judgments in the present case as well as the Wiese v Government Employees Pension Fund and Others (CCT 111/11) 2012 (6) BCLR 599 (CC) case, the assigned portion of the pension interest would be deemed to have accrued as is payable on the date of the divorce order.
The decision in MB v DB 2013 (6) SA 86 (KZD) concerned a divorce action between parties married out of community of property with the application of the accrual system. The issue was which party bore the onus of proof with regard to the nature and quantum of the assets excluded in their antenuptial contract from forming part of the accrual in the defendant’s (the husband’s) estate. The plaintiff (wife) relied on the evidence of a chartered accountant to prove the value of the husband’s estate and, therefore, of her potential share of the accrual. The husband led no evidence to demonstrate how he had dealt with the excluded assets over time, instead contending, inter alia, that:
Lopes J held that it was the husband, being the one in possession of all the facts relating to the assets reflected as excluded in the antenuptial contract, who bore the onus of proving which assets were to be excluded and why; to demonstrate what had happened to those assets, how they were converted from time to time, and what their present values were that fell to be excluded from the calculation of his net worth.
The operative moment when the value of the respective estates of the parties had to be assessed was at litis contestatio, (ie, close of pleadings) not when the divorce order was made.
Because the husband led no evidence to demonstrate how the excluded assets were dealt with by him from time to time, the court held that it would not be possible to determine what had happened to those excluded assets without making reasonable deductions from the discovered documents.
The court reasoned that South African courts should follow the approach to evidence adopted in a number of English cases when dealing with failure by a party to discharge his or her duty to disclose financial information in divorce proceedings. In terms of the approach followed in English law, courts were entitled to draw inferences (where they can be properly made) and to take notice of inherent probabilities in deciding whether or not assets formed part of the non-discloser’s estate.
The court accordingly ordered the division of the husband’s estate, the exact details of which fall outside the scope of the present discussion. The husband was ordered to pay the costs of the present action.
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Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.