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.
Cases and Articles on Divorce Law and Family Law in the SA courts.
Legal news and case law in the South African courts, compiled by Family Law attorney, Bertus Preller.
Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.