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Rautenbach v Rautenbach (3099/2006) [2008] ZAECHC 40 (20 February 2008)

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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

In the matter between: Case No: 3099/2006

Date Delivered: 20/02/08

JEANETTE RAUTENBACH PLAINTIFF

AND

WILLIAM GODFREY RAUTENBACH DEFENDANT

_______________________________________________________________

JUDGMENT

_______________________________________________________________

CHETTY, J


  1. This is an action for divorce. There is consensus that the marriage has irretrievably broken down and the only triable issue remaining is whether the plaintiff is entitled to an order that the defendant forfeit the patrimonial benefits of the marriage. S 9 of the Divorce Act 70 of 1979 thus provides that where, as here, the marriage is subject to the accrual system, courts of law in deciding whether or not a forfeiture order is to be made must consider the duration of the marriage, the circumstances which gave rise to its breakdown and any substantial misconduct on the part of either of the spouses. With that prelude I turn thus to consider the evidence adduced. I pause to mention that shortly before the trial the defendant’s attorney withdrew. The defendant however indicated that he wished to represent himself and the matter proceeded.


  1. The plaintiff and the defendant testified and their evidence amounts to the following. She and the defendant were married to each other on 8 January 1993, out of community of property by antenuptial contract. On 10 March 1995 the plaintiffs application for a home loan was approved and the common home at 9 Louis Street, Rowallan Park purchased. At the time of the marriage the plaintiff was employed as an estate agent. The defendant’s intimation to her that prior to becoming an estate agent he had been employed at General Motors as an accountant/auditor impressed her to such an extent that she readily agreed they open their own agency styled Willy and Jean Estates. When however she sought registration from the estates agents’ board the first sign that the defendant was not all that he pretended to be surfaced. He was not registered as an estate agent and thus the board decreed that she had to be the principal. The defendant however inveigled the plaintiff not to change the name of the agencies chosen banking account (Willy and Jean Estates). As time progressed he effectively managed all the agencies financial affairs. During 1996 the agency commenced managing an apartment block belonging to the Albert’s family. It collected the rental due by the tenants and after payment of the water, electricity and rates charges due to the municipality the balance would have to be paid into the Alberts family trust banking account. Initially the defendant was entrusted to pay the aforesaid accounts until the supply of electricity and water was suspended due to non-payment of the services charges. Mr Alberts senior was extremely upset at this state of affairs and wanted an assurance from the plaintiff that she personally would ensure that the services charges relating to the electricity and water be paid timeously. Consequently the plaintiff assumed full responsibility to pay the municipal water and light account but unbeknown to her, the municipal rates account which she had entrusted to the defendant to pay fell into arrears to such an extent that the defendant was compelled to divulge that he had utilised the money collected from the tenants for his personal use. The arrear outstanding rates totalled R 55 005, 38. The agency was unable to raise the amount and the plaintiff was compelled to take out a second mortgage bond on her residence. She was however only able to raise an amount of R50 000, 00, utilised the agency’s money to cover the shortfall and paid the arrears in full on 24 May 1996.


  1. The defendant’s promise to repay the money misappropriated never materialised. Over the next few years he acted as if the money in the agencies banking account belonged to him and, according to the plaintiff became a veritable law unto himself. His drinking habits increased dramatically. He became a virtual alcoholic. His gambling habits kept pace with his drinking. The various cheques in the bundle of documents (exhibit “A”) signed by him bear testimony to his extravagance. Confronted with these examples of his mismanagement of the agencies funds during cross-examination he maintained that the liquor purchases were presents bought for the agencies clients. That explanation is, as the cross-examination revealed, clearly contrived. The defendant was referred to a number of cheques and making due allowances for the passage of time which has elapsed, his response was that he could not answer questions pertaining thereto in the absence of what he referred to as the statements. The defendant’s disingenuous stance irrefutably shows that there is no proper explanation – he squandered the agencies money to feed his liquor and gambling addiction to such an extent that by the end of 1998 he was penniless.


  1. In February 1999 he was constrained to confess his parlous financial status and wrote a letter to the plaintiff. In it (exhibit “A25”) he set out somewhat cryptically, his insolvent status and sought the plaintiff’s understanding for his predicament. His promise to reform was short lived. His venture into the used car business resulted in several charges of fraud and theft being preferred against him. Although he begrudgingly conceded the conviction for theft he denied complicity in the auto fraud charges. His evidence hereanent was however far from convincing, and I accept the plaintiff’s evidence that several of the charges were not proceeded with by reason of the death and relocation of the individual complainants. The police investigation of these offences had a profound effect on the plaintiff. Ashamed at the defendant’s acts of criminality and his subsequent incarceration at the St Albans prison, the plaintiff rarely ventured from her residence.


  1. His conduct over the duration of the marriage finally led the plaintiff at the end of 1999 to cease the marital relationship. Although they shared the common home, they lived, as the plaintiff said “as brother and sister”. During 2000, the plaintiff became ill and asked the defendant to take over the responsibility for payment of the mortgage bond. The assurance that he gave her was hollow. The bond account fell into arrears and the mortgagor threatened legal action. The plaintiff was compelled to borrow money from her mother to settle the arrears to fend off the threatened action. The defendant’s repeated promises to contribute to the household expenses were short lived. The plaintiff, to her credit, readily conceded that the defendant would on occasion pay the domestic worker’s salary and buy household necessities. These were however sporadic and on an overall assessment of the evidence negligible. The defendant’s failure to make any meaningful contribution to the upkeep of the home led the plaintiff to surrender two policies of insurance to maintain their home. As a final affront to the plaintiff’s generosity the defendant conducted an illicit affair. Deeply hurt, and in a moment of rage, the plaintiff asked the defendant to leave the common home. That occurred during June 2005.

  2. In resisting the plaintiff’s claim that he forfeit the patrimonial benefits of the marriage, the defendant sought to advance his case by showing that he had made a meaningful contribution to their estate entitling him to an order for division of the joint estate. On an overall conspectus of the evidence, his contribution was minimal. His conduct throughout the subsistence of the marriage clearly amounts to “substantial misconduct” in terms of s 9 (1) of the Act. Under such circumstances given the effective duration of the marriage and the defendant’s conduct during its subsistence the plaintiff is clearly entitled to the order sought.


  1. In the result the following orders will issue:-

    1. A decree of divorce.

    2. The defendant will forfeit wholly the benefits accruing from the marriage between the parties.

    3. The defendant is to pay the costs of the action for divorce.




__________________________

D. CHETTY

JUDGE OF THE HIGH COURT