MONICA LAGANPARSAD | 27 November, 2011 – Sunday Times

A MILLIONAIRE Pretoria businessman is at the centre of a criminal investigation over the alleged illegal interception of his estranged wife’s private e-mails, SMSes and BlackBerry messages, or BBMs.

The hacking was first suspected when Dr Graham Hefer – a former Natal rugby player – filed divorce proceedings against his wife Denise.

Court documents in that case seemed to show that Hefer had access to more than 50 BBMs, over a dozen SMSes and at least five e-mails between Denise and others this year.

The case has revealed that the BBM facility, one of the preferred “secure” methods of communication can be hacked with relative ease.

Hefer, 48, the managing director of a Nigeria-based British company, is accused of installing spyware software on 49-year-old Denise’s BlackBerry. This type of spyware is readily available.

This is said to haveallowed real-time monitoring of her communication and her whereabouts, and for eavesdropping on her private conversations. These included discussions with her lawyer.

Police confirmed that the matter was under investigation by the Cape Town Central Police Station. Interception and monitoring of telephone communication is prohibited under the Regulation of Interception of Communications Act, known as Rica.

On Wednesday Denise filed a criminal complaint in which she claimed that Hefer had allegedly violated section 2 of Rica, which carries the possibility a fine of up to R2-million or up to 10 years in prison.

In an affidavit, she said she first became suspicious when her husband beat her to filing for divorce in May.

She said she had confidentially instructed her lawyer to issue summons to begin divorce proceedings.

She was shocked when Hefer ‘s attorney, without having been informed who her legal representative was, issued summons at her lawyer’s office.

”What I could not understand was how the accused and his attorney’s knew who my attorney of record was,” read her affidavit.

She claims her husband mentioned details of confidential discussions she had had with her lawyer, which led her to believe her phone had been hacked.

Her lawyer, Bertus Preller of Abrahams & Gross, said the allegations were serious. “There was a grave injustice towards the party involved in that it infringed attorney/client confidentiality,” Preller said.

Denise claims an investigation by her legal team revealed that a type of cellphone spyware, which can be purchased on the internet for R2 792, had been installed on her handset.

The software sends alerts to the e-mail address of the installer, who then has access to the telephone calls or messages on the phone being monitored.

Hefer’s lawyer, Selwyn Shapiro, who said he had advised his client not to comment, said the allegations were unfounded.

”We will deal with it at an appropriate time in the right forum,” said Shapiro.

Kathleen Rice, head of technology, media and telecommunications at law firm Cliffe Dekker Hofmeyr in Johannesburg, said Rica allowed for the interception of communication – but only in police investigations, ”and that can only be done with a court warrant. BBM messages are indirect communication but, if it’s being intercepted and monitored, that makes it a criminal offence .”

The recent case of AV v CV 2011 (6) SA 189 (KZP) is of interest in respect of whether a spouse was entitled to maintenance as of right. The court was of the opinion that awarding spousal maintenance was in the discretion of a court and not a right per se.

This was a matter where the granting of life long maintenance by the court was taken on appeal.  The trial court made an order in the following terms:

1. ‘That the bonds of marriage subsisting between the plaintiff (present respondent) and the defendant (present appellant) be and are hereby dissolved.
2. That the defendant be directed to pay maintenance to the plaintiff until her death or remarriage at the rate of R12 000 per month.
3. That the defendant be directed to retain the plaintiff as a beneficiary on his current hospital plan or any equivalent replacement thereof and to pay the premiums in respect thereof timeously and in full.
4.  That the defendant be directed to pay all amounts due in respect of the VW Polo 1.9 motor vehicle timeously and in full until the purchase price and all interest thereof has been paid in full.
5. That the defendant be directed to pay the plaintiff’s costs of suit.’

The appellant appealed against that part of the order contained in par 2, 3, 4 and 5.

 The Facts

The parties were married to each other at Durban on 18 December 1993 in terms of an antenuptial contract, whereby the accrual system was excluded. No children were born of the marriage. This was a second marriage for both parties. The appellant had two children from his previous marriage and the respondent four children. Both parties’ children lived with the couple during the marriage.

During 1995 the marriage relationship became strained largely because of financial difficulties. This led to the parties’ separation in 1997/1998. The respondent left the appellant because she was very unhappy in the marriage. The parties reconciled after a year of separation. The respondent claimed that the parties had always battled financially until she started a new job. In May 2007 the parties were finally separated.

The Law

The court a quo exercised its discretion afforded to it in terms of s 7(2) of the Divorce Act 70 of 1979 (the Divorce Act) and made its findings and delivered its award. Therefore, a court of appeal could only interfere when the court a quo in exercising its discretion misdirected itself or its discretion was not exercised judicially.

On behalf of the appellant it was argued that the court a quo misdirected itself in granting the respondent a permanent maintenance award.

At common law a spouse has no right to maintenance upon divorce. Section 7(2) of the Divorce Act confers discretion upon a court to make a maintenance order which it finds just, having regard to the following factors:

(a)   The existing or prospective means of each of the parties;

(b)   the respective earning capacities of the parties;

(c)   the financial needs and obligations of the parties;

(d)   the age of each of the parties;

(e)   the duration of the marriage;

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

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

(h)   any redistribution order made in terms of s 7(3) of the Divorce Act; and

(i)   any other factor which in the opinion of the court should be taken into account.

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 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 enable 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 long time and is too old to earn her own living and unlikely to re-marry.’

The court found in this case that the respondent was 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.

In Rousalis v Rousalis, the court stated at 450G – H:

‘A wife of long standing who has assisted her husband materially in building up his separate estate would in my view in justice be entitled to far more by way of maintenance, in terms of this section, than one who did no more for a few years than share his bed and keep his house.’

In Kroon v Kroon, the court found that, having regard to the duration of the marriage, ie 20 years, during which the plaintiff (wife) did not work in the open market but fulfilled the role of housewife and mother, she should be awarded maintenance. However, the court stated at 632F – G that:

‘(T)he Courts do not today distribute maintenance with any degree of  liberality to women who can and ought to work after divorce.’

In the matter of Robert v Robert (DCLD case No 933/2002, 10 March 2003), an unreported judgment, Gyanda J declined to award maintenance to a spouse who was unemployed at the time of divorce on the basis that the marriage lasted only five years, although the plaintiff was no longer a young person to be readily employed. It was a second marriage, and the period during which she enjoyed maintenance in terms of rule 43 had been sufficient to constitute rehabilitative maintenance.

In McCarthy v McCarthy (CPD case No 5570/2003, 15 December 2004), an unreported judgment, the issue in dispute was not whether the wife was entitled to maintenance or not, but the amount and period of such maintenance. The parties were married for 25 years and two children were born into the marriage. The wife had not been employed since 1981. She, however, obtained a BA degree after ceasing employment. The court found that there was no fault to be attributed to either of them in causing the marriage relationship to disintegrate. The court ordered rehabilitative maintenance.

In the case related to this article the parties were married to each other for 15½ years. No children were born of the marriage. It was the second marriage for both the appellant and the respondent. The appellant had two children and the respondent had four, all from previous relationships. At the date of divorce the respondent was 54 years old and was employed earning a monthly net salary of R7980. Her highest level of qualification is Grade 10. She had completed an informal typing course. She was also computer-literate.

The conduct of the parties is undoubtedly a relevant factor to be considered in determining a claim for maintenance in terms of s 7(2) of the Divorce Act. The marriage was of some duration. The reasons given by the respondent for the breakdown of the relationship are trivial. The Langebaan incident and the issues that the appellant had with her children cannot be regarded as ‘gross misconduct’ on the part of the appellant. The difficulties which the appellant and the respondent experienced in accommodating children born of marriages with other parties, within their marriage, coupled with the fact that the parties battled financially, may have placed a strain on their marriage.

The court in Beaumont, referred to the clean-break principle at 993B – F and stated:

‘(O)ur Courts will always bear in mind the possibility of using their powers under the new dispensation in such a way as to achieve a complete termination of the financial dependence of the one party on the other, if the circumstances permit. The last-mentioned qualification is, of course, very important; I shall return to it in a moment. The advantages of achieving a clean break between the parties are obvious; I do not think they need be elaborated upon. The manner of achieving such a result is, of course, by making only a redistribution order in terms of ss (3) and no maintenance order in terms of ss (2). What I have said earlier with regard to the Court taking an overall view, from the outset, of the possibility of making an order or orders under either ss (2) or ss (3) or both, does not mean that the Court will not consider specifically the desirability in any case of making only a redistribution order and awarding no maintenance, having regard particularly to the feasibility of following such a course. With regard to the latter and to the qualification I stressed a moment ago (if the circumstances permit), there will no doubt be many cases in which the constraints imposed by the facts (the financial position of the parties, their respective means, obligations and needs, and other relevant factors) will not allow justice to be done between the parties by effecting a final termination of the financial dependence of the one on the other. In the end everything will depend on the facts and the Court’s assessment of what would be just.’

In the case related to this article the respondent was 54 years old and the appellant is 53 years old. They have been married for 15 ½ years. The respondent was still employed and was computer-literate. In the court’s view the parties had to be allowed to get on with their lives and the appellant had to be relieved of his obligation to maintain two households. This was not a case where the appellant is able to afford and therefore he must maintain. The parties had come to a point in their lives that there should eventually be a ‘clean break’ between them.

Regarding the uncertainty as to what the future holds and the respondent’s prospects of continuing in her employment after reaching 60 years, the court in Beaumont supra stated at 995G – I:

‘Both parties will inevitably suffer hardship because of the parting of their ways. In relation to the areas of uncertainty it is impossible to assess accurately the relative degrees of hardship which each of the parties will suffer, depending upon what assumptions are to be made. Where choices are to be made and decisions to be taken in the dark, as it were, and where the areas of uncertainty are not due to any remissness on the part of the respondent to place available information before the Court, it would be fair, because of the appellant’s misconduct, to allow the scales of justice to be tipped in favour of the respondent and against the appellant, rather than the reverse.’

Section 7(2) of the Divorce Act states that in exercising its discretion, the court has to take any other factor into consideration in making a maintenance order. This includes the misconduct of the parties.

The assets of the respondent amounted to R301 331 as compared to the appellant’s assets of R155 356. The respondent conceded that her assets were more that the applicant’s. The court was of the view that if the respondent can cut her cloth according to her size, she was able to maintain herself on her assets and means.

In awarding maintenance to the respondent, the court a quo compared the present case to Rowe v Rowe (DCLD case No 6166/01), an unreported decision, where the wife, 58 years old, had no formal qualifications and was employed as a receptionist. She had not worked during the duration of the marriage. She was awarded open-ended maintenance. The court in the matter related to this article found the two cases to be distinguishable. Unlike in Rowe the respondent was computer-literate and was employed. In relation to the uncertainty of whether she was be able to continue in her employment after reaching 60 years, ‘it was impossible to assess accurately the relative degrees of hardship which each of the parties would suffer’. To find that she cannot be rehabilitated to become self-supporting was in the court’s view, a misdirection.

The court dismissed the wife’s claim to maintenance.

If a Defendant (the person against whom the divorce is instituted) lives in another country, a Plaintiff must first approach the court by way of what is known in law as an Edictal Citation application, a Defendant may direct in an appropriate way acceptance of the Summons at an address in South Africa. The process affords permission to a Plaintiff to serve the divorce documents on a spouse living in a  foreign country by way of local service.

The proprietary consequences of a marriage are governed by the lex domicilii matrimonii, that is the laws of the place where the husband was domiciled when the marriage was concluded. The law of the husband’s domicile at the time of the marriage governs the matrimonial property regime of the spouses even if the husband subsequently acquires a new domicile.

If for example the husband was domiciled in England at the time of the marriage and no Antenuptial contract was entered into in South Africa, the marriage will be out of community and in terms of English law. Should the parties later emigrate to SA, the marriage would remain out of community of property. Thus in a contested divorce where the husband was domiciled in England at the time of the marriage, a South African court is obliged to apply English law in respect of the patrimonial consequences of the divorce, i.e the division of the estate. Maintenance however and the aspects surrounding the children, like maintenance, care and contact will be dealt with in terms of South African law.

We have been dealing with numerous international divorce matters in South Africa matters concerning South African citizens and has acted in matters for South Africans living in countries such as Australia, United Kingdom, USA, Indonesia, The United Emirates, Germany, New Zeeland, Namibia to mention but a few and have been able to finalise some of these matter in as little as three weeks.

For further information email: info@divorceattorney.co.za or call 021 422 1323

DIVORCE – Don’t play chess by using your children as pawns

This world is rife of parents using their children as pawns in the dirty game of divorce or where children are born out of wedlock. We have all heard of the old saying “no maintenance no kids” or “you left me so you won’t see your kids”. Parents don’t realise the damage they are doing in using their children as a means to get back at the other parent.

By isolating or alienating the children from the other parent is damaging not only to the other parent but even more damaging to the children. As a family law attorney I have seen cases where one parent will go to immeasurable lengths to isolate the other parent from building a parental relationship with his/her children, thereby depriving the children in the process of the only stability they may have left.

So often you hear about the mother that lays sexual molesting charges, with no substance against the father simply in an attempt to isolate the father from having a relationship with the children or a mother obtaining a Domestic Violence interdict against a father simply to interdict the father from having a relationship with his children. Although it seems to be mostly women that play this deadly game, there are also fathers who use their children as pawns against the mother. Unfortunately in battles of this sort there are also attorneys who fuel the battles on behalf of their clients and who somehow lose sight of what the best interests of the child really means. Depriving the other parent of a relationship with his/her children is possibly one of the most devious methods to ruin a solid society.

In terms of section 33 (2) of the Children’s Act parents who experience difficulties in exercising their parental responsibilities and rights in respect of a child must, before seeking the intervention of a court, first seek to agree on a parenting plan. The section discourages co-holders of parental responsibilities and rights from approaching the court as a first resort when they experience difficulties in exercising those rights and responsibilities.  This section does not compel parents to enter into a parenting plan, it simply instructs them to attempt to agree on one. Looking at this section closely it seems that where one parent refuse to engage in such discussions the court may be approached for then an attempt to agree on a plan was made, even if it was doomed from the start.  Section 33(5) instructs a person to seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or suitably qualified person in preparing a parenting plan. It is therefore clear that before approaching the court, a person must first seek such assistance. If the other party is not amenable to engage then obviously a court may be approached.

Section 35 of the Act criminalises the refusal to allow someone who has access or holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreement that has taken effect to exercise such access. It also criminalises prevention of the exercise such access. Punishment is either a fine or imprisonment of up to one year.

About the Author:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals.

NIVASHNI NAIR | 10 October, 2011 00:44 – Times Live

A wealthy Durban doctor created a fake Facebook profile as a “hot young thing” to gather evidence against her husband in their divorce battle.

A Johannesburg businessman installed cameras in the study where his wife logged on to social networking sites so he could capture her “wild affairs”.

Cape Town divorce lawyer Bertus Preller said it would be wise for unhappy couples to watch what they post because it could come back to haunt them.

“Posting status updates and uploading photos of otherwise fun-filled events on social networks have led to an overabundance of evidence in divorce cases,” he said.

“According to the American Academy of Matrimonial Lawyers, 81% of its members have used or faced evidence plucked from Facebook, MySpace, Twitter and other social networking sites, including YouTube and LinkedIn, over the past five years. In South Africa, the situation is the same.”

Preller said almost one-third of his caseload involved contested divorces in which evidence from Facebook, MXit and Twitter was used to prove that the marriages were over.

“Although adultery is grounds for divorce, one must show that there has been an irretrievable breakdown of the marriage. But in contested divorces, one party will want to show otherwise, therefore evidence needs to be brought in to show that the marriage is over,” he said.

“These days, the first thing that clients do is go to Facebook or Twitter to get evidence. Often people do not log off their profiles or delete their inbox messages, making it easier for their spouses to gather evidence.

“So if you forgot to de-friend your wife on Facebook while posting vacation shots of your mistress, her divorce attorney may just be thrilled about you doing that.”

He said betrayed spouses went to great lengths to source evidence.

“Some have downloaded technology surveillance software to obtain information that will otherwise not be obtainable.”

A Durban doctor and mother of two, who spoke on condition of anonymity, wanted to catch her husband “in the act” to show the court that their marriage was “definitely over”.

“I created a profile and became his friend. We exchanged inbox messages three times and, on all three occasions, as he tried to convince me to go out to supper with him, he repeatedly said he was not married.

“He even said he didn’t believe in marriage and was not ready to settle down,” she said.

Although her divorce has not yet been finalised, the woman is confident that her “investigative skills will nail him”.

“I don’t think any judge would want me to stay with a man who said he doesn’t believe in marriage and is not ready to settle down.

“It hurt me at first because we have been married for 18 years, and have teenage sons, but I got over it when I saw the look on his face when I produced evidence.”

For more information about Family and Divorce Law contact:

Bertus Preller

E: bertus@divorceattorney.co.za

T: 021 422 1323

In this case it was declared that the Government Employees Pension Law,  Proclamation 21 of 1996, was inconsistent with section 9(1) of the Constitution of the Republic of South Africa, Act 108 of 1996, insofar as it fails to afford to former spouses of members of the Government Employees Pension Fund  the same rights and advantages as are afforded to former spouses of members of funds subject to the Pension Funds Act, 24 of 1956, more particularly those contained in section 37D(1)(d), (3) (4) and (5), and is invalid to the extent of that inconsistency.

The applicant was a former spouse of a member of the Government Employees Pension Fund (‘the Fund’), the first respondent, who, in March 2008, in terms of a settlement agreement which formed part of a divorce decree, was awarded a 25% share of her spouse’s pension interest in the Fund. The applicant was unable to realise this interest, however, since the legislation governing the Fund, unlike that governing private pension funds, only allows for the realisation of such an interest as and when an ‘exit event’ takes place in relation to the former spouse, such as resignation, termination of employment or death, and no such event has occurred.

As a result of financial hardship the applicant has at all time unsuccessfully sought to realize her share of her former spouse’s pension interest in the Fund. Having exhausted all other avenues she seeked an order that the governing legislation, the Government Employees Pension Law, Proclamation 21 of 1996, (‘the Law’) is inconsistent with s 9(1) of the Constitution of the Republic of South Africa and is invalid to that extent. She seeked, furthermore, an order whereby, broadly speaking, certain provisions in the Pension Funds Act 24 of 1956, (‘the PFA’) which allow for the immediate realization of pension benefits awarded on divorce to the non-member spouses of members of private pension funds, be read into the ‘Law’.

The applicant’s case was that differential treatment of a non-member spouse of a Fund member to that of a non-member spouse of a member of a pension fund governed by the PFA violates the affected party’s right, in terms of s 9(1) of the Constitution, to the equal protection and benefit of the law. More particularly, she contended that the applicant’s right of access to social security as entrenched in s 27 (1)(c) of the Constitution, and that of others in her position, was violated.

Given that the ‘clean break’ principle is applied to the divorced spouses of private pension fund members, there appears to be no rational reason why this should be withheld from their counterparts on divorce from a member of the Fund (or any other public pension fund, for that matter).

Bertus Preller

B.Proc; AD Dip L Law

Family Law Attorney

Abrahams and Gross Inc.

A:1st Floor, 56 Shortmarket Street, Cape Town, 8000

O: +27 (0) 21 422 1323

F: 086 572 8373

E: bertus@divorceattorney.co.za