---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG HIGH COURT DIVISION, PRETORIA

Case No: 36660/2018

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES:YES/NO

REVISED

DATE:28/10/2019

In the matter between:

J                                                                                                      PLAINTIFF

and

J                                                                                                      DEFENDANT

JUDGMENT

BASSON J:

INTRODUCTION

[1]      The Plaintiff and Defendant were married out of community of property on the14th of May 2004. The accrual system was further expressly excluded.

[2]      Two minor children were born from the marriage.

[3]      It is common cause between the parties that they separated in May 2018, after their marriage relationship had irretrievably broken down although the Defendant claimed during the trial that she still wanted to remain married to the Plaintiff.

THE FIRST RULE 43 APPLICATION

[4]      On 5th of September 2018 Kollapen, J pursuant to the Rule 43 application, granted an order that the primary residence of the two minor children shall vest with the Plaintiff, pendente lite, subject to the Defendant's reasonable rights of contact, which reasonable rights of contact had to be exercised under supervision as a result of the Defendant's continued and severe alcohol abuse. This Rule 43 order also ordered the Plaintiff to pay, pendente lite, to the Defendant, a contribution towards her maintenance in the amount of R7 500.00 per month. Although it was not specifically ordered, the Plaintiff retained the Defendant on his medical aid fund as a dependent. The Plaintiff was also ordered to contribute R5000.00 towards the Defendant's costs

[5]      Asocial worker, Ms. Irma Schutte, was appointed by agreement between the parties to conduct an evaluation and to present a report to the Family Advocate and the court with recommendations regarding the future exercise of Parental Responsibilities and Rights.

THE RULE 43(6) APPLICATION

[6]   In May 2019, the Defendant brought an application in terms of Rule 43(6) to claim higher maintenance for herself and for a further contribution towards her costs. This application was dismissed.

THE PRE-TRIAL MINUTES

[7]   Pursuant to a pre-trial conference convened in July 2019, a pre-trial minute was drafted. It is recorded that the Defendant admitted that she does “...indeed have an alcohol problem”, although it was added that the Defendant will “...aver that the Plaintiff is the sole cause of her alcohol problem and will tender evidence in support of this averment at the trial of this matter.”

[8]      During the pre-trial the Defendant conceded that the primary residence of the minor children should vest with the Plaintiff. She, however, claimed that she ought to be granted rights of contact without any supervision.

THE TRIAL

[9]   The matter was set down for trial to commence on Monday, 29 July 2019. The issues to be adjudicated upon were the following:

(i)    The Defendant's rights of contact to be exercised in respect of the minor children;

(ii)   The Defendant's claim for spousal maintenance, the principle, quantum and duration thereof; and

(iii)   The costs of the action.

[10]    At the time when the trial commenced, the two minor children were still in the care of the Plaintiff and, since the separation of the parties in May 2018, the Plaintiff  has been maintaining the two minor children fully without any contribution from the Defendant.

THE DRAFT ORDER DATED 30 JULY 2019

[11]    On the morning of 30 July 2019, the parties submitted to the court a draft order in respect of the Parental Responsibilities and Rights after the Defendant conceded that the exercise of her contact had to take place under supervision. The parties agreed that the Defendant’s sister would supervise the contact between the Defendant and the minor children. The parties also agreed that the Defendant’s sister would not allow the Defendant to consume alcohol either when exercising contact with the minor children, or driving a motor vehicle  with the minor children in her presence nor would the Defendant's sister allow for the manipulation of the minor children in any manner whatsoever. The parties also agreed that the court appointed social worker, Ms. Irma Schutte, would remain in the capacity as case manager and expert, and that she would monitor the contact rights of the Defendant in future.

[12]    When the trial commenced, the only outstanding issues were the Defendant's claim for spousal maintenance together with the costs of the action.

DIVORCE

[13]    The trial formally commenced on 30 July 2019 and continued until 2 August 2019. The trial was thereafter postponed sine die as a part-heard matter. In order to bring some finality to the matter in the interest of the two minor children, and by agreement between the legal representatives, a date was arranged for the court to hear the Plaintiffs application for a decree of divorce to be granted in the meantime as well as an order in respect of the Parental Responsibilities and Rights over the minor children. The Plaintiff undertook to continue to pay the current maintenance until the court finally pronounced on the matter.

[14]    By this time, substantial evidence regarding the breakdown of the marriage had been led by both parties and the legal representatives were in agreement that the court could conclude from the evidence that the marriage had had broken down irretrievably and that there existed no prospect for the restoration thereof.

[15]    A decree of divorce was granted on 8 August 2019. By agreement, an order was further granted in respect of the Parental Responsibilities and Rights over the minor children. The Plaintiff was awarded sole guardianship. The outstanding claims in respect of the Defendant's maintenance were postponed.

SPOUSAL MAINTENANCE

[16]    The only remaining issue then to be decided is whether the Defendant is entitled to spousal maintenance and if so, the quantum and duration thereof. In this regard the Defendant pleaded that an order be granted directing the Plaintiff –

(i)    To maintain the Defendant in her personal capacity as set out below until her death or remarriage, whichever event shall occur first.

(ii)     To pay maintenance to the Defendant for herself in the sum of R20 000.00 per month, on or before the 1st day of the month following the granting of a final order of divorce between the parties and thereafter on or before the 1st day of each and every successive month, by way of debit order into such account as the Defendant may nominate in writing from time to time.

(iii)    To retain the Defendant at his costs as a dependent on his current medical scheme or a scheme with analogous benefits and pay the monthly premiums (and any escalation) timeously and on the due date.

(iv)    To bear the costs of all reasonable expenditure in respect of medical, dental, surgical, hospital, orthodontic, and ophthalmological treatment needed by the Defendant and not covered by the medical aid scheme, including any sums payable to a physiotherapist, occupational therapist, speech therapist, psychiatrist, psychologist, chiropractor, the costs of medication, and the provision, when necessary, of spectacles and contact lenses.

(v)    That the amount payable as cash, supra, shall increase annually on the anniversary date of the divorce order, by the percentage exchange in the headline Consumer Price Index (“CPIF”) for the Republic of South Africa in respect of the middle income group or in line with headline inflation rate, which is applicable (or any replacement inflammatory index should the CPIF be discontinued) as notified from time to time by the Director of Statistics or his equivalent, for the preceding twelve months.

(vi)    To make available to the Defendant the use of her own motor vehicle and that the Plaintiff be ordered to replace the motor vehicle, pay all the costs of services, repairs and maintenance, as well as comprehensive insurance premiums, licensing costs, and pay membership fees. The Defendant also claimed that the Plaintiff be ordered to provide the Defendant with a new motor vehicle of her choice, with a comprehensive motor plan, of similar make and model as the motor vehicle that the Defendant presently drives, every five years, after the date of divorce. In respect of this claim, the Defendant did not make out any case and laid no basis for a new vehicle to be made available to her every five years. The Defendant also conceded that she can drive a cheaper vehicle so as to curtail her monthly needs.

(vii)   The Defendant furthermore claimed that the Plaintiff should be ordered to pay to her an amount of R310 000.00, within a period of six months from the date of the final divorce, as a “resettlement allowance”. No case was made out for this claim particularly in light of the fact that it was common cause that the Defendant had already relocated and that the Plaintiff has already paid for such relocation costs.

(viii)    To pay all payments, inclusive of the monthly maintenance  payments, should any such payments be ordered by the court, directly into the bank account of the Defendant's biological sister, who the Defendant claims shall administer the financial aspects of the Defendant’s life, on behalf of the Defendant. No application for the appointment of a Curatrix served before the court. Accordingly, such an order would be irregular and unenforceable.

(ix)    To pay the costs of the action on an attorney and “own” client scale.

IS THE DEFENDANT ENTITLED TO SPOUSAL MAINTENANCE FOR THE REST OF HER LIFE OR UNTIL SHE REMARRIES?

[17]    It is an accepted principle of South African law that neither spouse has a right to maintenance upon divorce[1]. The court in Botha v Botha[2] confirmed this principle as well as the principle that the entitlement to maintenance must first be determined before considering issues of quantum and duration of an order for maintenance. The court, per Satchwell J, held that -

“... taking into account so-called 'clean break' and Constitutional principles, there is no automatic right to maintenance after divorce. Entitlement to maintenance must first be shown before a court determines the quantum and duration thereof.” [3]

[18]    A similar approach was followed by the court in AV v C[4]where the court emphasized the point that a party must (first) provide a factual basis for maintenance to be awarded. Only once such factual basis has been established, will the enquiry move to the quantum and duration thereof. The court also explained the limitations of a claim for maintenance for life as follows:

“The authors Hahlo & Sinclair in their book The Reform of the South African Law of Divorce (1980) stated the following at 33:

‘(T)he idea that marriage ought to provide a woman with a “bread – ticket” for life is on its way out.’

This passage was quoted with approval in Grasso v Grasso 1987 (1) SA 48

(C) where the court stated further at 57H - I:

‘Middle-aged women who have for years devoted themselves full-time to the management and care of the children of the marriage, are awarded rehabilitative maintenance for a period sufficient to them to be trained or re-trained for a job or profession. Permanent maintenance is reserved for the elderly wife who has been married to her husband for a Jong time and is too old to earn her own living and unlikely to re-marry.’

It follows therefore that the respondent is not entitled to maintenance as of right, but must persuade the court to exercise its discretion in her favour. In doing so, she has to provide a factual basis for a maintenance award to be made before the quantum and duration thereof are determined by the court.

In Grasso supra the court, having regard to the duration of the marriage, ie 15 years, and the fact that the plaintiff had not worked for most of the marriage and was not working at the time of the divorce, awarded maintenance to the plaintiff. The court also took into account the conduct of the defendant (husband), which was regarded as 'gross misconduct' and which 'must inevitably play no small part in deciding whether or not he should be ordered to pay maintenance to the plaintiff’ (at 55A - B).”[5]

[19]    As already pointed out, only once a need has been established will the court’s attention turn to section 7(2) of the Divorce Act (“the Act”).[6] This section requires a court to consider the following factors in deciding an order relating to maintenance:

(i)        their existing or prospective means;

(ii)        their respective earning capacities;

(iii)       their financial needs and obligations;

(iv)      the parties’ ages;

(v)       the duration of the marriage;

(vi)      the standard of living of the parties prior to the divorce;

(vii)      the parties' conduct insofar as it may be relevant to the breakdown of the marriage;

(viii)     an order in terms of subsection (3); and

(ix)      any other factor, which in the court's opinion, should be taken into account.

[20]    The purpose of the court's enquiry in terms of section 7(2) is to determine what award in respect of maintenance would be "just" considering the parties' specific circumstances. These factors are not listed in any particular  order of importance or relevance. What is, however, clear is that a court is required to go further than just assessing the financial needs and obligations, existing means and earning capacities of the parties.[7]

[21]    The payment of maintenance to a spouse upon divorce is therefore the creation of statute. The language of section 7(2) of the Act is clearly discretionary and the use of the word "may" allows for a positive exercise of a judicial discretion to grant maintenance and equally allows for a negative exercise of a judicial discretion to not grant maintenance.[8] A divorce court, in exercising its wide discretion, therefore may or may not make an order granting maintenance. This discretion includes granting maintenance for "any period", whether for a specified period of time or  until the happening of an event.[9] This discretion afforded to the court in terms of section 7(2) must be judicially exercised and, in doing so, a court must take into account the evidence regarding those factors that were placed before the court. The interests of both parties must be taken into account and a court must further consider the impact the order will have on both parties. The need for maintenance (if it is established) must therefore be balanced against the ability to pay in order to ensure fairness between the parties. The court in Botha considered what would be regarded as “just”:

“What is ‘just’ has been considered in the context of insolvency and liquidation. In Pienaar v Thusano Foundation and Another 1992 (2) SA 552 (8), Friedman AJP said the following:

“By their very nature the words Just and equitable’ are incapable of an all­ embracing and exhaustive definition, and it is not surprising that the Courts have been unable to define them in an alI-encompassing manner. (At 578J.)

In its plain, grammatical meaning, ‘just’ means inter alia correct, appropriate, fair­ minded, sound, deserved, fitting, reasonable, justified and ‘equitable’ means inter alia even-handed, fair, honest, reasonable, right.

This in effect connotes and signifies that, if the Court, in exercising its discretion judicially, comes to the conclusion that it is correct and appropriate and fair and reasonable to wind up a company, it will do so.

To put it another way, in its process of reasoning, the Court is guided by ‘broad conclusions of law, justice and equity’, and in doing so it must take into account competing interests and determine them on the basis of a judicial discretion of which ‘justice and equity’ are an integral part. The Court has to balance the respective interests and tensions and counterbalance the competing forces and resolve and determine them in a fair, proper and reasonable manner. (At 580 DIE- G.)’

What is thought to be a ‘just’ order in the context of the Divorce Act must contain a moral component of what is thought to be ‘right’ and ‘fair’. Fairness envisages that the order is 'appropriate' as between the parties, and when measured against all the factors specified ins 7(2) and those others which a court decides should also be taken into account. What is 'appropriate' brings one back full circle to the moral consideration that the order must be ‘deserved’. Of course, any ‘just’ order must be 'well founded' on fact and reflect relevant and proper legal principles.’’[10]

[22]    The court in Botha,[11] however, cautioned against an approach where a court should confine itself only to “financial needs”, “existing needs” and “earning capacity”. The enquiry is much broader than this and requires the divorce court to consider a multiplicity of factors. Also important, particularly in the context of this matter, is the point made in Botha[12] that it would hardly be conducive toward justice to simply follow an approach of: "I need and you can pay".

[23]    Prior to the Act, the conduct of a party was of importance and matrimonial fault was often penalized in the awarding of maintenance. However, divorce is no longer fault orientated and post-divorce maintenance can no longer be considered as a form of penalty for any form of misconduct as it sometimes was in the past. The criteria of “conduct”, however, does introduce a measure of misconduct in the determination of maintenance. It does, however, seem that the courts tend to only consider conduct that can be termed as “gross misconduct”.

BRIEF SUMMARY OF THE EVIDENCE

[24]    Both parties testified. Because only the issue of maintenance remained, the Defendant commenced leading evidence. The conduct of the Defendant in so far as it is relevant to the issue of maintenance, overshadowed the evidence.Because of the particular egregious nature of the Defendant's conduct, it is, unfortunately, necessary to refer to the events that led to the breakdown of the marriage in some detail. Before I do so, it is relevant - the relevance of which will become more apparent later - to point out that the Defendant gave extensive evidence in chief. She was also vigorously cross-examined.The Defendant had no difficulty in giving evidence nor did she struggle to respond to vigorous cross ­ examination. She also did not display any difficulty in understanding any of the questions put to her and her answers were lucid and coherent.

[25]    As already pointed out, extensive evidence was led about the reasons for the breakdown of the marriage and how the conduct of the Defendant contributed to the breakdown. The breakdown of the marriage was gradual and, as will be pointed out, was as a result of the financial difficulties experienced by the parties (which affected both parties) and as a result of the excessive alcohol abuse, extra­ marital affairs and general behavior of the Defendant whilst intoxicated.

[26]    I do not intend on regurgitating the extensive evidence that was led before the court and will highlight only a few salient features of the evidence. The evidence was that the parties initially had a good marriage relationship and their standard of living was high. Early in their marriage, the Plaintiff and Defendant worked in the Harley Davidson shop which belonged to the Plaintiff’s parents. They earned a good salary and sometimes had the opportunity to go overseas in order to attend work related conferences. However, due to the downturn in the economy, the shop suffered financially and had to close down. Although both the Plaintiff and the Defendant were retrenched and although both of them suffered financially as a result thereof, the Defendant blamed her parents-in-law and even went so far as to accuse them of mismanagement of the business. No evidence substantiating these accusations was, however, placed before the court. As a result of their retrenchment, the Plaintiff and Defendant had to downscale their lifestyle and accommodation. Prior to them having to move as a result of their retrenchment, the parties lived in a big three-bedroomed house in Six Fountains Estate. The Defendant's version of the down-scaled accommodation was that they then had to live in a “garage”. She testified that she became severely depressed as a result thereof. The Plaintiff had a different take on the facts and explained that the accommodation was proper and that his parents were in fact still living there.

[27]    The Defendant also contended that she was the one who had to maintain them at some stage and that for three years she maintained them when the Plaintiff lost his employment. The Plaintiff disputed this and contended that he utilized his pension of approximately R 500 000.00 to maintain them. He also contended that he was only unemployed for approximately six months.

[28]    The Defendant was admitted to Eden Rehabilitation Centre (Eden) in 2017. She blamed the Plaintiff for forcing her to be admitted. The evidence, however, suggests otherwise. The Defendant bitterly complained about Eden and testified that it was like a prison. She could not see her children for the first seven days. She testified that she felt abandoned and that when she met a one Mr. Johan Coetzee at Eden, she had sexual intercourse with him. The Plaintiff testified that although he felt hurt by this, he nonetheless forgave her.

[29]    During May 2018, the marriage fell apart. The Plaintiff left the matrimonial home and informed the Defendant that he wanted a divorce and that she should consult an attorney. The Plaintiff removed his personal property and took the children with him.

[30]    The Defendant testified that she did not have an alcohol problem at the time and that it only started once the Plaintiff moved out and took the children with him. The evidence unfortunately suggests otherwise. The Defendant's alcohol abuse started long before the separation. I will return to this issue.

[31]    In June 2018 (after the parties had already separated), the Defendant’s employment at Warp Development (Pty) Ltd (Warp Development) was terminated due to her alcohol abuse and constant absence from the office.

[32]    As already pointed out, the Defendant brought a Rule 43 application. She attended to consultations with the court appointed social worker (Ms. Irma Schutte). I will return to her report in more detail.

[33]      On 26 September 2018, when the Defendant turned up to a consultation session with Ms. Schutte in an intoxicated state, the Defendant was admitted to Denmar Psychiatric Centre (Denmar) via her treating psychiatrist Dr. Du Plessis. She was released and transferred to Beethoven Rehabilitation Centrum in order to first receive treatment for her alcohol abuse before she could be treated at Denmar.

[34]    The Defendant admitted that she attempted suicide during December 2018 whereafter she was admitted to the Unitas Hospital from 22 - 25 December 2018. She testified that the reason was that she had barely seen her children since the beginning of the divorce proceedings and that she was severely depressed.

[35]      A bone of contention was a business known as Outsideview Consulting (Pty) Ltd. The Defendant contended that they were equal shareholders and that both she and the Plaintiff were directors of the company. She also contended that she contributed to the business by entering into a personal loan and utilized the loan to support the business. The Plaintiff showed in his evidence that the Defendant took out the loan during January 2018 but that she used it for her own benefit. The Defendant placed no evidence before the court that she paid over the loan to the business as contended by her. It was further common cause that the Defendant made no other contribution to the company.

THE DEFENDANT’S ALCOHOL ABUSE

[36]    The evidence about the Defendant’s alcohol abuse and the devastating effect it had, not only on the Plaintiff, but more importantly on her two daughters, was overwhelming.

[37]    Before I turn to specific aspects of the evidence that was led, I must point out that it was an outstanding feature of the Defendant’s evidence that she had no appreciation of the seriousness of her alcohol abuse and the fact that this played a significant role in the breakdown of the marriage. As will be pointed out, the Defendant even arrived intoxicated at meetings scheduled with the court appointed social worker (who was tasked to report to the Family Advocate and the court regarding her suitability as a parent). Even when her position as a parent was as stake, she made no effort to take steps to bring her alcohol abuse under control. Instead of taking ownership of her alcohol problem, the Defendant persistently blamed everyone else for her situation. She mainly blamed the Plaintiff for her drinking problem -although the evidence showed that the Plaintiff assisted and paid (to a large extent) for her rehabilitation in clinics. She even went so far as to accuse the Plaintiff of forcing her into a rehabilitation facility (Eden) against her will whereas the evidence clearly showed that this was not the case. She further blamed her parents-in-law for the financial predicament she found herself in and bizarrely even blamed them·for the closure of a business where she worked and was retrenched. The business closed as a result of the worldwide financial crisis and the weak exchange rate. She also refused to appreciate the fact that the Plaintiff was also affected by their financial predicament and that she was not the only one who had to scale down financially. Even at the end of her cross-examination, the Defendant still maintained that she did not need any professional help for her alcohol problem and insisted that she would rehabilitate herself. This  is despite the overwhelming evidence that she had a serious problem to such an extent that she had lost guardianship over her two minor children.

[38]    The Defendant testified that the Plaintiff consumed just as much alcohol as she did and blamed him for providing her with alcohol. She also accused him of not giving her any support. She further testified that at the time she was served with the divorce summons, she did not have an alcohol problem. This is patently not so. It was the uncontested evidence of the Plaintiff that he, over a long period of time, begged her to stop drinking especially when it became clear that her alcohol abuse started to affect the children. He testified that he would come home in the afternoons and that Defendant would already be heavily intoxicated to such an extent that she could not help the children with their homework or prepare dinner. The Defendant reluctantly admitted that she was sometimes highly intoxicated by the time the Plaintiff came home from work but, according to her, it was only a couple of times and not every day. She also conceded that the Plaintiff and the two children sometimes had to hide liquor from her so that she could not find it.

[39]      Although the Defendant consistently blamed the Plaintiff (and her parents-in-law) for her alcohol consumption, she eventually, under cross-examination, conceded that the Plaintiff and his family abstained from any use of alcohol for a period of two months in an attempt to assist the Defendant in her struggle to control her alcohol abuse.

[40]    I have already referred to the Defendant’s admission to Eden Rehabilitation Centre. She was admitted into a four-week treatment program on 22 October 2017. The Defendant accused the Plaintiff of having forced her to attend Eden where she could receive help for her alcohol abuse. In her evidence she, however, admitted that she could not dispute that a Ms. Beneke had phoned the Plaintiff to inform him that the Defendant needed to be admitted for rehabilitation for her alcohol addiction after she (the Defendant) had admitted to Ms. Beneke that she had an alcohol problem. The evidence further showed that the Defendant packed her own bags and completed her own forms upon her admission.

[41]    The Defendant also admitted that when she was discharged from Eden and the Plaintiff came to fetch her, he found her at Sorbet Beauty Salon consuming alcohol merely hours after she had been discharged.

[42]    I have already referred to the Defendant's admission to Denmar and her transferal to Beethoven because she was too intoxicated to be admitted to Denmar.

THE DEFENDANT'S EXTRA-MARITAL AFFAIRS

[43]    Although she denied the extra-marital affair in her pleadings, the Defendant eventually admitted to entering into an extra-marital relationship with Mr. Johan Coetzee, whilst attending Eden Rehabilitation Centre. She claimed, however, that this relationship was entered into by her as a result of the Plaintiff abandoning her during her time in the rehabilitation centre. The Plaintiff’s uncontested evidence, however, was that he and the children supported the Defendant fully during her time at the rehabilitation centre and that he was shocked and hurt to learn of the Defendant’s extra-marital affair.

[44]    During examination - in - chief, the Defendant claimed that she was not involved in any further relationship. However, under cross-examination, the Defendant conceded that she entered into several extra-marital “relationships”. She refused to concede that these should be regarded as “relationships” and stated unequivocally that her involvement with other men should only be regarded as “intercourse” and not as “relationships” despite the fact that she also conceded that she and a Mr. Shaun Ferreira lived together on and off for approximately six months after she and the Plaintiff had separated.

DIVISION OF THE ASSETS

[45]    The Defendant initially testified that she walked out of the house with literally “the clothes on her back”. She, however, eventually conceded under cross­ examination that this was not the truth and that she basically took all the furniture and household items that were in the parties' former common home and that the Plaintiff only took his tools, his computers and some personal items. She also conceded that she sold the two minor children's bicycles and took the money for herself.

THE DEFENDANT’S EMPLOYMENT HISTORY

[46]    The Defendant was employed at Warp Development. Her services were terminated in August 2018 (only after the parties had already separated). She blamed the Plaintiff for the termination of her employment and claimed that she became depressed as a result of the Plaintiff claiming a divorce from her. In her Rule 43 application of August 2018, the Defendant claimed that she was "retrenched" as she was too emotional to attend to her work.

[47]    A letter from Warp Development dated 19 June 2018 was presented to the court. In this letter the Defendant's erstwhile employer confirmed that the Defendant was provided with an opportunity to attend a rehabilitation facility for alcohol abuse after arriving at work whilst under the influence, failing which, her employment would have to be terminated. Despite vigorous attempts from her legal representative to prevent the court from having sight of the letter, the Defendant eventually conceded that she chose not to enter into rehabilitation despite her employer offering to pay for her rehabilitation and to pay her full remuneration during this time. She refused and her employment was terminated on 27 June 2018 when Warp Development informed her that her employment was terminated as a result of strains with regards to her emotional well-being and her constant absence from work. The Defendant admitted that she had made the wrong choice by not accepting the offer from her employer to go for rehabilitation. At the time of her employment she earned about R 18 000.00 per month.

THE DEFENDANT'S MONTHLY EXPENSES

[48]    In order to prove her current monthly expenses, the Defendant was obligated to provide her bank statements to court. The only statements that were presented to court were those dating back to early 2018, during a time when the parties were still cohabiting in one home. In the pre-trial minute dated 17 July 2019, the Defendant recorded that she was unable to obtain her bank statements by virtue of the fact that her Nedbank account has been handed over to debt collectors. In cross-examination the Defendant stated that she had no money and therefore she could not pay for the bank statements which she stated would amount to about R30 for one month’s statement. Accordingly, no bank statements were presented to the court which could have assisted the court in determining whether the Defendant indeed has a real need for maintenance.

[49]    When the trial was postponed, the Defendant had already completed her evidence. Although the Plaintiff was still under cross-examination, the legal representative for the Defendant assured the court and his opponent prior to the postponement that he only needed about 40 minutes to complete his cross-examination. However, when the trial resumed on the morning of 16 September 2019, the legal representative for the Defendant suddenly produced two lever-arch files containing, inter alia, the Defendant's bank statements. Unsurprisingly, counsel on behalf of the Plaintiff strongly objected to what she labeled a “trial by ambush.” Neither the Plaintiff nor the court had received any prior warning from the legal representative of the Defendant that voluminous documents would be presented on the morning of the resumption of the trial. Counsel on behalf of the Plaintiff further pointed out that she also could not consult with her client as he was still under cross-examination. The court disallowed the further documents that were sprung not only on the court but on an unsuspecting Plaintiff. What makes matters worse is the fact that the Defendant had already closed her case during the previous court sitting. There was further also no application to re-open the Defendant’s case.

THE EXPERT REPORTS

Ms. Irma Schutte (Social Worker)

[50]      Ms. Schutte was appointed by the court in terms of the order granted in the Rule 43 application. She was tasked to conduct an evaluation and present a report to the Family Advocate as well as the court with recommendations regarding the exercise of future Parental Rights and Responsibilities.

[51]    Ms. Schutte was not called to testify. The Plaintiff maintained that he accepted the report in its totality and therefore held the view that it was not necessary for him to call Ms. Schutte particularly in as far as the only issue that remained before the court was the issue of maintenance where the Defendant had the onus of proof. Though the Defendant's legal representative objected to the report, where it suited the Defendant's case, he relied upon it.

[53]      What then is the status of the report? It is accepted that the report cannot be submitted into evidence on the mere production thereof. Regarding the report of Ms. Schutte, it is warranted to make a few observations regarding the obstructive conduct of the Defendant's legal representative in respect of this report. It is unclear on what basis the legal representative on behalf of the Defendant objected to the report of Ms. Schutte particularly in light of the fact that the Defendant had, in any event, admitted most of the facts as set out by Ms. Schutte in her report. Moreover, her legal representative had no hesitation relying on the report where it suited the Defendant's case and in fact relied liberally on the report in his heads of argument, particularly to substantiate his client's version in respect of her averment that she could not work because of her psychiatric condition and early onset of alcohol induced dementia. In so far as Ms. Schutte made certain recommendations regarding the custody arrangements of the children and the necessity of supervised contact between the Defendant and the children in light of the Defendant’s alcohol abuse, those recommendations have in any event been accepted by the Defendant and formed part of the agreement between the parties that was made an order of court. The Defendant was also specifically asked whether she had instructed her legal representative about the report of Ms. Schutte. The Defendant expressly testified that there was nothing in Ms. Schutte's report that she did not want the court to see.

[53]    Despite the aforegoing, the Defendant's legal representative continued to raise numerous objections against any reference to the report of Ms. Schutte. Notwithstanding the aforegoing, I have nonetheless decided to err on the side of caution and approach Ms. Schutte’s report with circumspection and rely only on those parts of the report admitted by the Defendant in her evidence or where her legal representative referred to the report in his heads of argument.

[54]    I have already referred to the fact that the Defendant admitted that she arrived intoxicated at Ms. Schutte's office on 26 September 2018 and that she was admitted to Denmar the same day via her treating Psychiatrist. She also admitted that she was often intoxicated during meetings with Ms. Schutte.

[55]    The Defendant admitted some of the recordals made by Ms. Schutte in respect of the two minor children. More specifically, she admitted that her daughters were humiliated by her drinking. However, when she was confronted by the allegation that her one daughter told Ms. Schutte that she was upset and scared when her mother drove a car whilst intoxicated, the Defendant declined to comment.

[56]    The Defendant did not dispute Ms. Schutte’s observation that, apart from having limited insight into her own behavior, other therapists described her as treatment resistant. Previous attempts of alcohol rehabilitation have therefore been unsuccessful due to the Defendant’s lack of insight. Ms. Schutte also records that the Defendant does not take responsibility for her wrongdoings and that she continuously blames the Plaintiff for all her problems - a theme that also ran consistently throughout her evidence in court.

[57]    More in particular, Ms. Schutte (and this was the part heavily relied upon by the Defendant) stated that the Defendant would not able to take care of the minor children with her psychiatric profile and that she would also not be able to care for her own needs in future. Ms. Schutte specifically referred to the fact that the Defendant's alcohol abuse led to the early onset of dementia:

“Her family is also not able to support her physically or financially on the long term. Consideration to register her as a state patient needs to be given in order to make provision for her when her dementia becomes so severe that she can’t take care of herself. Her drinking patterns exacerbate the problem and will also increase the severity of the development of her dementia.”

[58]    Ms. Schutte's conclusion that the Defendant was not able to take care of her minor children on a full time basis was not disputed.

[59]    In completing her report, Ms. Schutte also had regard to various collateral reports. I will only refer to these reports insofar as the Defendant's legal representative referred to them in his heads of argument.

Dr. llze Du Plessis (Psychiatrist)

[60]      On recommendation by Ms. Schutte, the Defendant was admitted to Denmar clinic on 26 September 2018 where the Defendant received psychiatric treatment by Dr. Du Plessis for depression and anxiety. Dr. Du Plessis' diagnosis was substance­ induced major neurocognitive disorder. She also diagnosed the Defendant with dementia due to alcohol and bipolar disorder II with anxious features mixed with cluster B personality traits. Dr. Du Plessis referred the Defendant to Dr. Fourie.

Dr. Fourie

[61]      Dr. Fourie noted that the Defendant showed very little insight into her current situation and the consequences of her alcohol abuse. She confirms that she informed the Defendant that she should discontinue all alcohol consumption and that she should avoid any other substances. Occupational therapy will help with improving her memory. Dr. Fourie noted that she was worried about the Defendant’s ability to look after two primary school children particularly since she is consuming alcohol daily.

Dr. Lydia Gillie-Schmidt (Industrial Psychologist)

[62]    The Plaintiff called the Industrial Psychologist Dr. Gillie-Schmidt (“Schmidt”) to present evidence as an expert after she conducted various tests and presented a comprehensive report to the parties and to the court.

[63]    Schmidt records that the Defendant admitted to her that she consumed alcohol and that she started to drink heavily after the parties separated on 14 May 2018. Despite the fact that the Defendant blamed the Plaintiff for forcing her into rehabilitation, she confirmed to Schmidt that she booked herself into Denmar on two occasions and that she would like to do that again.

[64]    Schmidt confirms in her report that she had interaction with Ms. Blomerus of the Defendant's previous employer. Ms. Blomerus informed her that the Defendant was dismissed as a result of her alcohol problem. Ms. Blomerus also confirmed that the Defendant refused to accept an offer to go to rehabilitation and confirmed that, after the parties had separated, the Defendant just would not turn up for work.

[65]      Regarding the Defendant's employment prospects, Schmidt concludes that the Defendant is a vulnerable participant in the labour market as a result of the various psychological and cognitive health conditions as diagnosed by Dr. du Plessis.

[66]    It was her finding that it was unlikely that the Defendant will currently be able to successfully obtain and retain employment in the open labour market. She, however, pointed out that the Defendant's re-entry into the labour market was dependent on the successful treatment and management of her disorders as diagnosed by Dr. du Plessis.

[67]    Significant is Schmidt's recordal that she regarded abstinence as  essential especially in managing alcohol related dementia. She also found that persons diagnosed with bipolar disorder can still maintain and control high level functioning in the workplace although she did state that the Defendant was a vulnerable employee especially in light of the fact that she will have to disclose her medical condition to a prospective employer who might rather opt to employ an applicant who does not suffer from the medical conditions suffered by the Defendant. However, if the Defendant's condition is stabilized successfully and provided that her psychological condition is managed, she may be able to apply for positions that suit her particular circumstances.

[68]      Although the Defendant attempted to place high emphasis on the fact that she was diagnosed with early onset dementia, she conceded in her own evidence that she can still work, despite this condition. Moreover, in the Rule 43 application, the Defendant declared under oath that she can obtain employment and that she will utilize her best efforts to obtain employment and better her personal circumstances.

EVALUATION

[69]    The crucial question is whether the Defendant has provided the court with a factual basis for a conclusion before the court that she is entitled to spousal maintenance. If not, the question of quantum and the duration thereof will not arise.

[70]    I have taken into account all the evidence that was placed before the court. I am persuaded that the totality of the evidence supports a finding that the Defendant is in need of maintenance not only to sustain herself, but also to seek medical assistance for her alcohol abuse. Although much can be said about the fact that the Defendant lost her employment through her own stubbornness and refusal to acknowledge her alcohol problem, the fact remains that she is presently in need of maintenance and will be in the near future. I am, however, also mindful of the fact that the Defendant placed no documentary proof to substantiate her claim for maintenance. However, despite this fact, I have nonetheless exercised my discretion in favour of a finding that she is entitled to spousal maintenance but - as will be pointed out herein below - for a limited period only.

[71]    The issue then to be considered is in respect of the duration and quantum of the maintenance payable.

[72]    On behalf of the Plaintiff it was submitted that the following factors should be considered regarding the issue of spousal maintenance as provided for in section 7(2) of the Act:

(i)    The Defendant had employment when this divorce action commenced. She conceded that she still would have had employment had she made the right "choice" when her previous employer offered treatment to her whilst she was still to receive her full remuneration.

(ii)    The Defendant claimed that she can manage her own alcohol consumption and that she can be employed.

(iii)    The Defendant attended court with no difficulty for an entire week and managed to provide her legal representative with clear instructions. The Defendant also presented evidence in court for days on end, without any difficulty.

(iv)    The Defendant failed to provide any proof whatsoever of her current financial needs and obligations and failed to present recent bank statements, clearly not wanting the court to see what she spends on a monthly basis, while she currently receives an “income” via the Plaintiff.

(v)    The Defendant conceded that she could currently lower her financial needs and obligations in that she is currently resident with her parents. The Defendant in turn also conceded that she could drive a cheaper vehicle.

(vi)    The Defendant is only 37 years old.

(vii)    The marriage is not to be regarded as a marriage of exceptionally long duration.

(viii)    The Plaintiff is solely taking care of all the financial needs of the minor children.

(ix)   The Defendant failed to prove that the parties had a particularly high standard of living prior to the institution of the divorce action and in fact conceded that both parties suffered severely financially, especially since 2009, when the Harley Davidson business was liquidated.

(x)    The Defendant's conduct led to the breakdown of the marriage relationship in that she conceded that she entered into further inappropriate relationships, despite the fact that the Plaintiff had forgiven her extra-marital relationship with Mr. Coetzee, while she was receiving treatment at Eden Rehabilitation Centre.

(xi)     The Plaintiff had to take financial responsibility for all the experts' reports, the therapy of the minor children, the medical expenses of the Defendant and the minor children, whilst also having to foot the bill for the legal expenses the Defendant forced him to incur.

(xii)    The post-divorce “custody arrangement” had a prejudicial effect on the Plaintiffs earning capacity in that he had to mainly conduct his work from home in order to curtail his expenses and to be more flexible to provide for the children’s needs and take them to and from school, and to and from their respective activities. Being the sole parent, caretaker and the sole breadwinner in this family placed a very high demand on the Plaintiff which most certainly would not make it just if the court ordered him to continue to contribute to the Defendant’s maintenance.

[73]      All of these factors are relevant and were taken into account. I have already pointed out that the trial was overshadowed by evidence regarding the conduct of the Defendant, particularly in the few years leading up to the separation of the parties. There is no doubt that her conduct is severe. Her alcohol abuse and extra-marital affairs effectively destroyed not only her marriage but, more importantly!  had a severe impact on her two young daughters. No child should witness the kind of alcohol abuse and accompanying aggression that these two young girls had to witness. The Defendant's misconduct during the marriage therefore was undoubtedly significant. Having said this, I am mindful of the fact that the conduct of a party is not the only factor that must be taken into account and also should not be overstated at the expense of the other relevant factors that must be taken into account.

[74]    I do not discount the impact the financial problems had on the family after the Harley Davidson business collapsed but the Plaintiff can hardly be blamed for the state of affairs. Although the Defendant painted herself as the only victim and blamed the Plaintiff and his family for the collapse of the business, he was just as much affected as the Defendant. The entire family had to downscale until they found their feet again.

[75]    On the evidence I am persuaded that the both parties contributed to the common household and that both initially assisted with the upbringing of the minor children. This changed drastically when the Defendant gradually started to drink more and more to such an extent that she was mostly intoxicated by the time the Plaintiff came back·from work.

[76]    Although the Defendant had been diagnosed with various psychiatric conditions as far back as 2012 she was able to be gainfully employed. But for her alcohol abuse, she would have still been employed. Although the Defendant has been diagnosed with various psychiatric problems, her inability and reluctance to curtail her alcohol intake contributes to, and exacerbates, her psychiatric conditions.

[77]    Despite the evidence of Dr. Gillie-Schmidt, I am not persuaded that the Defendant is unable to be gainfully employed. The opinion of Dr. Schmidt seems to ignore the fact that the Defendant was capable of being gainfully employed despite her psychiatric conditions (which were diagnosed as far back as 2012) and that it was due to her alcohol abuse and refusal to accept help from her employer that she lost her employment. Her employment was effectively terminated after the parties separated as a result of her alcohol abuse and repeated absence from work. The fact that she declined an opportunity to, at the cost of her employer, admit herself into a rehabilitation centre, also played a role in her dismissal. It can also not be ignored that the Defendant herself testified that she wants to work and that she is capable of being employed. I cannot therefore find that the Defendant has established an inability to work to such an extent that she is entitled to maintenance in perpetuity.

[78]      Although it is accepted that her alcohol abuse does make her a vulnerable employee as was pointed out by the Industrial Psychologist, it cannot be ignored that her persistent alcohol abuse and her apparent unwillingness to seek assistance to get her alcohol abuse under control is a major contributing factor to her inability to be gainfully employed. The Defendant refuses to take responsibility for her alcohol abuse - she even refused to do so in court. Instead she consistently blames everyone else but herself. She needs to take responsibility for her alcohol abuse and unfortunately this is something that lies within her own hands as she cannot continue to blame the Plaintiff.

[79]        Although the Plaintiff is currently in a better position to earn an income than the Defendant, I am not persuaded that it would be just to order the Plaintiff to maintain the Defendant in perpetuity particularly in light of the fact that the Plaintiff will, for many years to come, have to maintain the two minor daughters without any contribution from the Defendant. Such an order will effectively result in the Plaintiff (who already solely takes care of two minor daughters) having two work for the rest of his life to support the Defendant whilst she remains unproductive partly due to her unwillingness to acknowledge her alcohol problem and commit to rehabilitation.

[80]        Although, as I have indicated, the evidence points to the fact that the Defendant's future employment opportunities are less secure as a result of her psychiatric condition and alcohol abuse, the evidence also shows that the Defendant would be able to secure gainful employment if she brings her alcohol abuse under control. The Defendant is receiving treatment (paid for by the Plaintiff's medical aid) for her psychiatric condition. Only she can take matters into her own hands and seek help to bring her alcohol abuse under control. I thus propose making an order that will provide a window of opportunity for the Defendant to continue with therapy and to secure employment thereby incentivizing her to achieve financial autonomy and become self-supporting. Although the Defendant has already been maintained by the Plaintiff for more than a year with no improvement in any efforts to curtail her alcohol abuse, I am of the view that it would be just to afford the Defendant a further window of opportunity - albeit for a limited period of time - to seek help for her alcohol abuse so that she can secure employment and become self-supporting. More importantly, the Defendant's alcohol abuse has placed a severe strain on her relationship with her two daughters and I am of the view that it would also be in the interests of the two minor children to afford their mother an opportunity to seek assistance with her alcohol problems.

[81]    Lastly, taking into account the fact that the parties have been married for approximately 15 years, the fact that the Defendant is still currently relatively young (38 years), the fact that she does have prospects of employment should she seek professional assistance, the fact that the Plaintiff will for many years to come have to solely maintain the two minor children and the fact that the Plaintiff has already contributed significantly towards rehabilitation efforts of the Defendant, it would, in my view, be just to award the Defendant maintenance in the amount of R7 500.00 per month for a period of two years from the date of this order. The Plaintiff is further ordered to retained the Defendant on his medical aid fund as a dependent and to bear the costs of all reasonable expenditure in respect of medical, dental, surgical, hospital, orthodontic, and ophthalmological treatment needed by the Defendant and not covered by the medical aid scheme, including any sums payable to a physiotherapist, occupational therapist , speech therapist, psychiatrist, psychologist, the costs of medication, and the provision, when necessary, of spectacles and contact lenses.

[82]    I have already dealt with the Defendant's other claims and my reasons for not granting them.[13]

COSTS

[83]    I am in agreement with counsel on behalf of the Plaintiff that the costs of the trial were incurred unnecessary. The Plaintiff, in an attempt to avoid the costs of a lengthy trial, made a generous tender before the trial commenced, which the Defendant outright refused. The Defendant's legal representative moreover unnecessarily and without basis raised various objections in court, pointlessly prolonging the proceedings and nitpicked endlessly on irrelevant issues. The Plaintiff is the one out of pocket: He is the one who is maintaining the two minor children and he is the one that has paid for all the expenses of the various experts including the expenses related to the supervised visits between the Defendant and the two minor children. I have also taken into account that the Defendant's attorney stated that he is assisting the Defendant on a contingency basis.

[84]    In the circumstances I am of the view that it is only fair that each party pay its own costs.

[85]    In the event the following order is made:

1.    The Plaintiff is ordered to pay to the Defendant maintenance in the amount of R7 500.00 per month for a period of two years from the date of this order on or before the 1st day of the month following the granting of this and thereafter on or before the 1st day of each and every successive month, by way of debit order into such account as the Defendant may nominate in writing from time to time.

2.    The Plaintiff is ordered to retained the Defendant, for a period of two years from the date of this order, on his medical aid fund and to bear the costs of all reasonable expenditure in respect of medical, dental, surgical, hospital, orthodontic, and ophthalmological treatment needed by the Defendant and not covered by the medical aid scheme, including any sums payable to a physiotherapist, occupational therapist, speech therapist, psychiatrist, psychologist, the costs of medication, and the provision, when necessary, of spectacles and contact lenses.

3.    Each party to pay its own costs.

A.C BASSON

JUDGE OF THE GAUTENG

DIVISION, PRETORIA

Appearance:

For Plaintiff:                                      Adv Riani Ferreira

Instructed by:                                    Louw Attorney

For Defendant:                                  Mr. Joshua Lazarus

Shapiro & Ledwaba Inc

---