L O v J S O (CA177/2023) [2024] ZAECGHC 98 (11 September 2024)

Editorial note: Certain information has been redacted from this judgment in compliance with the law.

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, MAKHANDA)

CASE NO: CA177/2023

In the matter between:

L[…] O[…] Appellant

and

J[…] S[…] O[…] Respondent

JUDGMENT

POTGIETER J

[1] The appellant appeals against an ancillary order, granted pursuant to a decree of divorce issued by the Regional Court, Gqeberha on 12 July 2018, that she should forfeit the benefits of her marriage in community of property to the respondent. The full order reads as follows (sic):

‘[24] The following order is granted:

Judgment granted in favour of the defendant.

Decree of divorce,

Forfeiture of benefits arising from a marriage in community of property,

Each party to pay their own legal costs.’

[2] Ms Ntsepe appeared on behalf of the appellant on the instructions of Legal Aid South Africa, while the respondent appeared in person. The appellant’s case in brief was that the court a quo erred in ordering forfeiture instead of division of the joint estate. The position of the respondent was in effect that on his understanding the immovable property referred to below and which was part of the joint estate, was awarded to him by the court a quo.

[3] It is common cause that the joint estate consisted of movable property valued at approximately R16 000.00 and an immovable property described as […]. The immovable property (which is the real subject matter of the appeal) is commonly known as a RDP house. It is part of free housing provided to the indigent to alleviate the housing shortage pursuant to the erstwhile government policy styled the Reconstruction and Development Programme (‘RDP’).

[4] The relevant background is that the parties started a romantic relationship and co-habited for approximately 10 years before they got married. They acquired the RDP house during their relationship and received transfer of the property into their joint names on 28 October 2002. The title deed reflects the parties as the registered co-owners, each holding an undivided one-half share in the property. The appellant was unemployed throughout the period of their pre-marital co-habitation and made no contribution to the purchase of the furniture and other movables that formed part of the respondent’s pre-marital estate. They subsequently married in community of property on 7 February 2011. The marriage relationship broke down irretrievably soon thereafter. The consortium lasted for approximately 4 months whereafter the appellant departed from the common home (being the RDP house) and moved back to her family home in[…].

[5] The appellant commenced an action for divorce on 31 July 2015 seeking, inter alia, a decree of divorce and division of the joint estate. She averred in her particulars of claim that the reasons for the breakdown of the marriage relationship were: that the parties lost their mutual love and affection; there was a lack of meaningful communication between them; the respondent emotionally abused her; and that the parties have not lived together as husband and wife since 2011.

[6] The respondent defended the action. In his original plea and counterclaim he admitted that the marriage had broken down irretrievably and simply sought a decree of divorce and an order that each party pays their own costs. He subsequently amended his counterclaim and averred that the joint estate consisted of the aforesaid RDP house and movable property (which was admitted by the appellant) and sought forfeiture of the benefits of the marriage in community of property. He relied on the following grounds for the breakdown of the marriage: that the appellant was conducting an extra-marital affair with a married man and that she was pregnant with the man’s child; that the parties have not lived together as husband and wife since June 2011; there was no meaningful communication between them; and that the appellant was not committed to the marriage.

[7] Both parties testified at the trial. The appellant also led the evidence of Mr Andre Daniel, an Assistant Director in the provincial Department of Human Settlements attached to the Housing Subsidy Programmes, Facilitation and Administration Division who was responsible for all housing subsidy applications. The thrust of the evidence of Mr Daniel was that the parties were both beneficiaries of the RDP subsidy that was utilised to acquire the common home and were the co-owners of the property. This much is also borne out by the relevant title deed which, however, erroneously describes the parties as being married in community of property. As indicated, the marriage was solemnized only in 2011 some nine years after registration of transfer. Nothing really turns on this issue which does not affect the parties’ ownership of the property. The legal position pursuant to the due registration of transfer of immovable property (as happened in this case) has been authoritatively stated by Eksteen JA in Knysna Hotel CC v Coetzee NO¹ to be as follows (translated from the lucid original Afrikaans text): ‘if all the formalities of transfer were heeded, and accepted by the Registrar of Deeds, and if the transfer was registered in the deeds registry, a legally valid transfer has formally occurred. This transfer may be contestable on a variety of grounds, but until it has been cancelled by a court order, it remains legally valid.’ Moreover, in terms of the provisions of section 100² of the Deeds Registries Act³ no act of registration in a deeds registry shall be invalidated by any formal defect in any registered deed, unless an irremediable, substantial injustice resulted from the registration. The abovesaid incorrect description of the marital status of the parties in the title deed can hardly be said to have caused a substantial injustice as envisaged in section 100. In any event, if needs be, this formal error in the description of the parties can be rectified by the Registrar of Deeds in terms of section 4(1)(b)⁴ of the Deeds Registries Act.

[8] The validity of the title deed was not in dispute before the magistrate and neither party sought either the rectification of the registry or the cancellation of the transfer of the half share in the property to the appellant. The magistrate was not called upon to consider the events leading to the transfer and the deed of transfer itself constitutes proof of a legally valid transfer of ownership of a half share in the RDP house to the appellant in 2002. The position remained unchanged thereafter and at the time of the marriage the appellant owned a 50% undivided share in the property.

[9] It is of note for present purposes that it was not in issue at the trial that the appellant conducted an extra-marital affair from which at least one child was born during the subsistence of the marriage. It also appeared that other children were born out of a relationship with a third party or third parties prior to the marriage during the period when the parties were cohabiting. The court a quo held that the relevant facts and circumstances of the case, in particular the short duration of the marriage (the consortium endured for four months while the parties were technically married between 2011 and 2018) and the conduct of the appellant (which on a close reading of the judgment was regarded as substantial misconduct), justified the conclusion that the appellant would be unduly benefited if an order is not made that the appellant should forfeit the benefits of the marriage in community of property. In the event, the abovementioned order was made. It is clear from the reasoning of the court a quo that it regarded the RDP house as being subject to the forfeiture order, i.e. that the appellant lost her rights to the property.

[10] Although the appeal has been brought on the basis that the court a quo erred by ordering forfeiture instead of division of the joint estate, the actual objective of the appellant was to preserve her rights in the RDP house. That is understandable. However, no case has been made out in my view that the court a quo erred or misdirected itself in any respect in ordering forfeiture in the circumstances of the case. The forfeiture order is clear and unambiguous and is not susceptible to being assailed on appeal. The conduct of the appellant, the short duration of the marriage and the respective contributions of the parties towards the joint estate were all relevant factors arising from the provisions of section 9(1)⁵ of the Divorce Act⁶, which were properly taken into account by the court a quo.

[11] For the sake of completeness, it should be pointed out that there is obvious merit in the contention of the appellant that the RDP house is an asset that was brought into the marriage and as such the appellant’s rights to a half share in the property are not susceptible to forfeiture on divorce. There is also merit in the submission that the reasoning in the judgement indicates that the court a quo had failed to appreciate this when it ordered forfeiture. To that extent, the court a quo was clearly wrong. It is trite that spouses married in community of property cannot forfeit assets which they brought into the marriage. Where forfeiture is ordered it only applies to benefits that a party derives from the marriage and which they otherwise would not have had.⁷ It follows that the forfeiture order clearly does not have the effect of depriving the appellant of her co-ownership of the RDP house.

[12] Furthermore, it is also trite that an appeal lies against the substantive order that was granted by the court a quo and not against its erroneous reasoning. The Supreme Court of Appeal explained the principle as follows in Tecmed Africa (Pty) Ltd v Minister of Health & Another⁸:

‘First, appeals do not lie against the reasons for the judgment but against the substantive order of a lower court. Thus, whether or not a court of Appeal agrees with a lower court’s reasoning would be of no consequence if the result would remain the same.’

The error in the reasoning of the court a quo does not detract from the fact that in the present circumstances the forfeiture order cannot be assailed. The result must therefore remain the same despite the erroneous reasoning, however, the forfeiture order applies only to the benefits arising from the marriage, same being the appellant’s interest in the movable assets to the value of approximately R16 000.00, to which she did not contribute.

[13] I should add that there is no merit in the submission by Ms Ntsepe that the court a quo, as a matter of fact, ordered that the appellant should forfeit her rights in the RDP house. She relied for this submission on the introductory sentence that precedes the substantive orders quoted above. She contended that the said sentence: ‘Judgment granted in favour of the defendant’ equates to forfeiture of the appellant’s rights in the RDP house in light of the preceding reasoning of the court a quo. The sentence simply introduces the substantive orders that follow. The orders themselves are clear and unambiguous. The forfeiture order did not stipulate that the appellant lost her rights in the RDP house. As indicated, as a matter of law, it could not do so. The argument that the order in fact did so is accordingly misguided. Naturally, if there still remains a dispute between the parties concerning the effect of the forfeiture order on the appellant’s rights in the immovable property, that would more properly be the subject matter of separate declaratory relief which does not arise in the present appeal.

[13] It follows that the appellant’s contention cannot be sustained that the court a quo erred in ordering forfeiture instead of division of the joint estate. The appeal therefore must fail.

[14] As indicated, the respondent has appeared in person while the appellant is assisted by Legal Aid South Africa. Under the circumstances there should be no order as to costs.

[15] In the result I make the following order:

(a) the appeal is dismissed;

(b) there shall be no order as to costs.

______________________

D.O. POTGIETER

JUDGE OF THE HIGH COURT

I agree:

________________________

J.W. EKSTEEN

JUDGE OF THE HIGH COURT

APPEARANCE

For the appellant: Adv L Ntsepe

Instructed by: Legal Aid South Africa, 69 High Street, Makhanda,

For the respondent: Mr JS O[…] (In Person)

Date of hearing: 30 August 2024

Date of delivery of judgment: 11 September 2024