SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case No: 022/2022
In the matter between:
M[….] D[…] M[…] APPLICANT
and
T[…] P[…] M[…] RESPONDENT
Neutral Citation: M[…] v M[…] (022/2022) [2023] ZASCA 75 (26 May 2023)
Coram: Molemela JA, Mbatha JA, Meyer JA, Matojane JA and Siwendu
AJA
Heard: 14 March 2023
Delivered: 26 May 2023
Summary: Family Law – divorce – partial forfeiture of benefits – misconduct –
whether s 9(1) principles properly considered by the full court – whether condonation
and waiver ground raised by full court mero motu sustainable – s 9(1) of the Divorce
Act 70 of 1979, as amended, principles restated.
____________________________________________________________________
2
ORDER
___________________________________________________________________
On appeal from : Limpopo Division of the High Court , Polokwane (Kganyago J,
Muller J and Naude AJ sitting as court of appeal):
1 Condonation for the late filing of the application for special leave to appeal the
order of the full court dated 23 March 2021 is hereby granted.
2 Special leave to appeal the judgment an d order of the full court, Limpopo
Division of the High Court, Polokwane, dated 23 March 2021 is granted.
3 The appeal is upheld with costs and the order of the abovementioned full
court is set aside and substituted as follows:
‘4.1 The appeal is upheld with costs.’
4.2 Paragraphs (c) and (d) of the order of the High Court (MG Phatudi J) are set
aside and substituted as follows:
‘(c) The defendant’s counterclaim succeeds.
(d) The patrimonial benefits of the parties’ marriage in community of property in
respect of the defendant’s pension benefits and interest held in the Government
Employee Pension Fund are forfeited by the plaintiff in favour of the defendant.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Mbatha JA (Molemela, Meyer and Matojane JJA and Siwendu AJA concurring)
[1] Mr T […] P[…] M[…] (the respondent) and Mrs M […] D[…] M[…] (the
applicant) were married to each other on 1 October 1985 in community of property
and profit and loss. On 17 October 2016 the respondent instituted an action for
divorce and an cillary relief thereto in the Limpopo Division of the High Court,
Polokwane (the high court) , against the applicant. On 19 November 2020, the high
court, (per MG Phatudi J) dismissed the applicant’s counterclaim for a partial
forfeiture order in respect of the applicant’s pension benefits and granted the
following orders:
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‘(a) a decree of divorce; (b) the joint estate shall be divided equally between the parties as
stipulated in the signed Deed of Settlement marked [Annexure “A”] which is made an order
of Court; (c) the defendant’s counter claim is dismissed; (d) the Government Employee
Pension Fund ( G .E.P.F) is ordered to pay to the plaintiff 50% of the defendant’s pension
fund’s nett benefit/interest, out of its G.E.P.F calculations from the date of divo rce and
payable in terms of the provisions of s 3 of the Government Employees Pension Law
Amendment Act 19 of 2011; (G.E.P.F. Law Amendment Act) and (e) that each party to pay
own costs.’
[2] Aggrieved by the decision of the high court, the applicant on 27 January 2021
sought leave to appeal from this Court against the judgment and order (save for the
order dissolving the marriage) and the condonation for the late filing of the
application for leave to appeal. On 12 March 2021 this Court granted the appli cant
leave to appeal to the full court, Limpopo Division of the High Court, Polokwane (the
full court). Her appeal to the full court failed.
[3] On further application , the applicant sought special leave to appeal to this
Court. On 26 February 2022 this Court ordered that the application for leave to
appeal be referred for oral argument in terms of s 17(2) (d) of the Superior Courts Act
10 of 2013 (the Superior Courts Act ). The parties were directed to be prepared, if
called upon to do so, to address this Court on the merits of the appeal. In order to
obtain leave from this Court, the applicant needs to establish that the appeal would
have a reasonable prospect of success as contemplated in s 17(1) (a)(i) of the
Superior Courts Act on both appealability and on the partial forfeiture of benefits
sought.1
[4] Furthermore, the applicant applied in terms of rule 12 of the Rules of this
Court for condonation for the late filing of the record and the heads of argument. The
applications were not opposed by the respondent. Accordingly, the applicant’s non -
compliance is condoned. In addition, as is apparent from the record , the respondent
abides by the decision of this Court as w as the case when the appeal served before
the full court.
1 Van Wyk v The State , Galela v The State [2014] ZASCA 152; [2014] 4 All SA 708 (SCA); 2015 (1)
SACR 584 (SCA).
4
Background
[5] In the particulars of claim the respondent attributed the failure of the ma rriage
to the grounds that:
‘the parties are no longer compatible and no longer share common interests; the Defendant
[the applicant] has through her conduct as mentioned earlier humiliated and hurt the Plaintiff
[respondent]; the Plaintiff has lost his love and affection for the Def endant and is no longer
interested in the continuation of the marriage relationship; the Defendant denies the Plaintiff
with his conjugal rights.’
The respondent’s core claim with regard to the division of the joint estate was a
specific claim for a half s hare in the applicant’s pension interest held by GEPF. This
claim was based on the provisions of s 7(7) of the Divorce Act 70 of 1979 (Divorce
Act), as amended, which deems the pension benefits or interest of a spouse to form
part of the joint estate.
[6] In her plea and counterclaim , the applicant did not resist the claim for a
decree of divorce. She admitted that the marriage relationship had irretrievably
broken down, although she disputed that she was the cause of the breakdown as set
out in the respondent’s particulars of claim. In her counterclaim, she claimed that the
reasons for the breakdown of the marriage were that:
‘the Plaintiff ( the respondent) formed an ad ulterous relationship which relationship he
refused to end notwithstanding numerous requests by the defendant; the Plaintiff has a five -
year-old child with his mistress; the Plaintiff failed to contribute pro -rata according to his
means toward the running of the household and the maintenance of the parties’ children; the
Plaintiff was financially irresponsible in that he would among other things spend his money
on his mistress; the Plaintiff has ruined the Defendant financially in the amount of
approximately R1 500 000.00; the Plaintiff has humiliated and degraded the Defendant
throughout the marriage relationship; there is a total lack of communication between the
parties [and] the parties are living separate lives and are no longer interested in the
continuation of a marriage relationship.’
Consequently, the applicant sought an order that the respondent partially forfeits the
right to share in her pension interest in GEPF with membership number 9 […], as he
would be unduly benefitted. This issue was cent ral during the hearing of the divorce
action.
5
The appellant’s evidence presented during the trial
[7] The applicant’s testimony of what led to the breakdown of the marriage
relationship was the prolonged extramarital affair by the respondent with one Mapula
Eva Leshiba (Eva), an erstwhile employee of their Financial Services business. The
applicant became aware of the respondent’s extra marital affair with Eva through an
anonymous call in July 2007. She confronted Eva , who admitted in a derogatory
manner that she was involved in a love relationship with the respondent. The
respondent, however, denied the existence of the affair. The applicant described this
incident as a turning point in her life, as the affair was conducted in the public
domain. Furthermore Eva bore the respondent a child, who was five years old at the
time of the divorce. These incidents brought her pain and humiliation.
[8] The applicant testified that she tried professional counselling with her
husband immediately after learning about the respondent ’s extra marital affair with
Eva, which bore no fruit. During the second session of counselling with one Dr
Mabeba, the respondent informed Dr Mabeba that ‘this thing of marital affair, [was]
something that [was] in him. A man who did not have an extra marital affair was a
fool’. Consequently, nothing would stop him from having mistresses in his life. The
applicant testified that she realised that her efforts at reconciliation with the
respondent were futile. She expressed her dis illusionment in this manner: ‘. . . from
there I could see that we were heading nowhere with this session. That is when I told
my husband that because I can see that you are still adamant that there is no way
that things can change then I think that even t hough we may stay as a man and a
wife then it will be better for us to stay that way but . . . we will not have sexual
intercourse up until he stops having this extramarital affairs. . . .’ When the applicant
was asked to clarify to the court what she mean t by that, her response was ‘because
I was afraid that I may be infected with HIV Aids . . .’. Be that as it may, she still left
the door open for him as she informed him that only when he was tired of having
mistresses, they could discuss the way forward. Her evidence was that: ‘ we will talk
about the conjugal rights. Maybe go and do some check -ups if there are some
illnesses’. And explained further: ‘So that he also can be satisfied that I do not have
a love affair’.
[9] The applicant testified that on 25 March 2008, she took the bull by its horns
and dismissed Eva from their employment, which did not settle well with the
6
respondent. In retaliation, the respondent informed her that he was in love with Eva,
will marry her, build her a house and start a b usiness with her. This was the
beginning of her financial woes as the respondent stopped depositing money into her
account, as he had previously done . This occurred at a time when their cash loan
business was flourishing. At this stage , the family business was making between
R20 000 and R40 000 per month. By 2007 the parties had already invested over
R500 000 with Absa Bank. The applicant was told in no uncertain terms by the
respondent to stop interfering in the family business.
[10] In support of her claim for a partial forfeiture of benefits , the applicant testified
of a grand scale fleecing of the joint estate. The respondent gave money to Eva to
start a cash loan business called Mokgatlou Cash Loans (Mokgatlou), which
business was operating in direct competition with the family business. The
respondent financially and physically assisted Eva in her cash business to the
detriment of the family business and the joint estate . The Mokgatlou cash loan
business was followed by Malele Funeral City Parlour (Ma lele) established by the
respondent with Eva, in which Eva acquired a 50% interest, the respondent holding a
20% interest and 30% was warehoused for other partners. Unabatedly, the
respondent and Eva established other businesses including El-Eshe Trading CC and
El-Eshe Funeral Undertakers CC where each of them held a 50% interest
respectively.
[11] The applicant testified tha t Eva, whilst in their employment, had purchased a
stand close to their matrimonial home. The respondent built a double -storey
house for Eva on that stand, partially completed around November 2012. During this
period, the respondent sold nine head of cattl e out of their 73 head of cattle kept in
Dendron to a local chief. The proceeds of the sale of cattle totalling R34 000, were
deposited into the El -Eshe banking accoun t. Coincidentally, the sale of livestock
happened at the time when the roof of Eva’s house was constructed. Eva was given
access to their motor vehicles at th at stage, without the applicant’s consent. The
relationship between the respondent and Eva was at all times conducted in the
public domain.
[12] The applicant testified that the respond ent was building a business empire
with Eva, whilst she was struggling to make ends meet. Finally, the applicant took
7
the gauntlet and approached the Maintenance Court in respect of their minor
daughter’s educational needs. During the hearing of the mainte nance case , the
respondent informed the court that he had six other children born out of wedlock
whom he was maintaining at R300.00 per month per child. He proposed to pay the
same amount for his daughter. The court, however, awarded the applicant a
maintenance order of R750 per month in respect of their daughter with effect from 30
April 2013. That was not the end of the matter . In 2015 the respondent was again
ordered by the Maintenance Court to pay for their daughter’s university fees from the
funds invested with Absa Bank, which he prior to that had refused to do. The
applicant testified that she was solely responsible for their chil dren’s education from
primary school up to grade 12 and that when it was the respondent’s turn to take
over in respect of their tertiary education, he failed to do so.
[13] It was also the applicant’s testimony that she contributed 80% towards the
building of the matrimonial home and made provision for her family members,
including the respondent , to be a member of her medical aid scheme. The
respondent did not contribute proportionately towards the running of the household
and the maintenance of the chil dren. During the time when the respondent was
involved in Eva’s business interests , the applicant had no access to their cash loan
business and unbeknown to her , their cash loan business had been deregistered on
23 November 2015 at the instance of the respondent.
[14] The applicant was cross -examined about Mogasehla, a business allegedly
run by her in competition to the family business. She testified that the alleged
competing business was registered in the name of her nephew in 2006, long before
she and the respondent had marital problems. A fact which was known to the
respondent. She testified that she was not involved in that business, save that its
employees, after they had collected money from her nephew’s clients, handed the
money over to her at the request of her nephew who lived in Johannesburg. The
money was used for the welfare of her nephew’s children who lived with her, and the
balance was given to him. She vehemently denied that she was a sleeping partner in
that business.
[15] Under cross -examination, it was suggested to the applicant that the
respondent paid for the university fees of their oldest son. The applicant’s response
8
was that the respondent paid only for the first two years of his tertiary education,
from 2009 to 2010. And that when their son insisted on following his chosen career
path in Information Technology rather than medical studies as proposed by the
respondent, he stopped paying for his university fees. Consequently, the applicant
had to take over the payment of his university fees and all related expenses from the
end of the first semester in 2011.
[16] When the applicant was asked about the financial status of their family
business when both parties were still involved in its operation, she testified that their
business was thriving and they had no losses. The surplus profits from the business
enabled them to invest funds with ABSA bank and buy Christmas gifts for
employees, customers and relatives. And since the dismissal of Eva, she was
disconcerted to learn that Eva , who was running her cash loan business alongside
theirs, was also entrusted by the respondent with the collection of cash from their
clients. She confirmed the allegation in her pleadings that the respondent had ruined
her to the tune of R1.5 million , which represented the money collected by the
respondent from the family business from 2008 to the date of divorce that was not
accounted to her. When it was suggested that she had free access to groceries in
their shop, she stated that, that was the case bef ore Eva joined the respondent in
that business.
The respondent’s evidence
[17] The respondent denied having an extramarital affair with Eva. He averred that
they were only friends. He visited her, assisted her in collecting money from clients
and assisted her in her other business interests. He denied having business interests
with Eva at all and alluded only to be ing involved in the family business. It was only
under cross-examination when he was confronted with documentary evidence that
he conced ed to have established businesses with Eva. The concession was also
contrary to his plea to the counterclaim where he averred as follows: ‘I am not the
owner of El -Eshe Funeral Undertakers, it belongs to one Eva Lesheba (sic) , and I
am the employee thereof ’. He struggled to explain the discrepancy in his plea to the
counterclaim and in his evidence in chief regarding the ownership of business
interests with Eva.
9
[18] The respondent who had testified to the existence of the family business was
confronted u nder cross -examination with proof of the deregistration of the family
business at his instance. He misled the high court when he claimed to be working at
the family business, when he had knowledge that it had been deregistered. He
admitted that he was work ing at Eva’s businesses, whilst in the same breadth he
claimed to have deregistered the family business due to it causing him stress. The
documentary evidence that was used to confront the respondent also showed that
he left El -Eshe Funeral Undertakers in 2013. He confirmed this fact but stated that
he was not compensated for his member’s interest in that business . Instead , Eva
gave him a credit card to use whenever he needed to purchase anything. The
respondent did not disclose the credit limit on the credit card. The respondent ,
surprisingly, claimed to be working for free for Eva, as he testified that he was not
paid a salary but claimed to draw a salary of between R3 000 and R4 000 from the
family business. Later, he claimed to have received a basic sala ry of between R2
000 and R3 000 from Eva.
[19] The respondent gave a glowing testimony of Eva’s business acumen,
leadership qualities and competency in business. He attributed the demise of the
family business to her expulsion by the applicant. He confir med that Mokgatlou,
owned by Eva, operated where the family business operated and that he was
assisting Eva in that business. He testified that he would collect money from Eva’s
business clients on her behalf. At the same time, he alluded to the competition at the
instance of the applicant posed by Mogasehla, which stopped him from doing
business at pension points due to Mogasehla undercutting interest rates in
competition with the family business.
[20] The respondent confirmed that they had a profitable business in 2007, which
had yielded an investment of over R500 000. He also confirmed that the family had
various business interests, including a cell phone depot, a poultry business and a
spaza shop. The respondent claimed to have provided for his childre n’s education
from the proceeds of various business interests. He denied building Eva a house or
of using the proceeds of the sale of cattle for the benefit of Eva. Upon being
questioned whether he had children with Eva he gave an evasive answer. He did no t
deny the existence of the maintenance orders sought by the applicant for the
educational needs of their children.
10
The judgment of the full court
[21] The full court, per Kganyago, Muller JJ and Naude AJ, dismissed the appeal
by the applicant for an order for partial forfeiture of benefits. In dismissing the appeal,
it found that the applicant , of her own accord , had given the respondent perm ission
to continue having extra marital affairs until he got tired of them. In that regard , so it
was held, she condoned the alleged extra marital affair with Eva for the past nine
years. The full court held that as a consequence of such a condonation , she waived
her right to rely on the long enduring extramarital affair of the respondent with Eva as
a ground for the irretrievable breakdown of the marriage since she was content with
it. The full court concluded that the applicant’s reliance on the long enduring
extramarital affair did not suffice to support her claim for an order for forfeiture of
benefits.
[22] Additionally, the full court held that the applicant was conducting Mogasehla in
competition with the family business, Mokgatshehla, hence the wanting financial
state of Mokgatshehla. As a result the conduct of the applicant in contributin g to the
demise of Mokgatshehla amounted to substantial misconduct on her part.
[23] The full court also accepted the respondent’s evidence though it was not
substantiated. In conclusion, it held that taking into consideration the duration of the
marriage of the parties, the circumstances that led to the breakdown of their
marriage and that both parties have committed substantial misconduct, an undue
benefit will not accrue to one party in relation to the other if an order for forfeiture
was not granted.
The issues before this Court
[24] The legal questions before this Court are as follows: (a) whether the applicant
was entitled to a partial forfeiture order in respect of her pension interest/benefit held
in GEPF; (b) whether the r espondent’s long endur ing extra marital affair with Eva,
the abuse and misappropriation of the funds from the various family business
interests for the benefit of Eva and the failure to contribute meaningfully to the joint
estate by the respondent translated into substantial misconduct on the part of the
respondent; (c) in that regard, whether the respondent would be unduly benefitted if
the order for partial forfeiture of benefits was not granted; (d) whether the full court
11
was correct in finding that the appellant condoned th e extra marital affair of the
respondent with Eva and waived her right to rely on that ground of misconduct in
pursuit of her claim for a partial forfeiture of benefits; (e) lastly, whether the full court
was entitled to mero motu raise the issues of condonation and waiver.
The legal principles applicable
[25] Section 9(1) of the Divorce Act provides that:
‘When a decree of divorce is granted on the ground of the irretrievable break -down of a
marriage the court may make an order that the patrimonial benefi ts of the marriage be
forfeited by one party in favour of the other, either wholly or in part, if the court, having
regard to the duration of the marriage, the circumstances which gave rise to the breakdown
thereof and any substantial misconduct on the par t of either of the parties, is satisfied that, if
the order for forfeiture is not made, the one party will in relation to the other be unduly
benefitted.’
[26] The entitlement to a half share in the pension interest of the other spouse is
governed by ss 7(7) and 7(8) of the Divorce Act; which provide as follows:
‘7(a) In the determination of the patrimonial benefits to which the parties to any divorce
action may be entitled; the pension interest of a party shall, subject to paragraphs (b) and
(c), be deemed to be part of his assets.
[27] The Divorce Act did away with the fault element as a ground for divorce.
However, a consideration of whether there was substantial misconduct on the part of
one of the parties, is one of the factors that may be taken into account. It is not a
stand-alone factor but has to be considered with the other factors mentioned in s
9(1).
[28] There are several seminal judgments which have clarified the legal principles
in relation to the application of s 9(1). The principles stated by the Appellate Division
in Wijker v Wijker2 (Wijker) are as follows:
(a) The party seeking an order for forfeiture of benefits does not have to prove
the existence of all three factors in s 9(1) cumulatively.3 The court needs to ask itself
whether one party will be unduly benefitted if an order of forfeiture w as not made,
2 Wijker v Wijker 1993 (4) SA 720 (A).
3 Ibid at 721F.
12
and in order to answer that question , regard should be had to the factors mentioned
in s 9(1).
(b) Wijker advocates that when dealing with s 9(1) the following approach should
be adopted: ‘the first step is purely a factual issue. Once that has been established
the trial court must determine, having rega rd to the factors mentioned in the section,
whether or not that party will in relation to the other be unduly benefited if a forfeiture
order is not made. Although the second determination is a value judgment, it is made
by the trial court after having con sidered the facts falling within the compass of the
three factors mentioned in the section.’4 It further advocated the approach adopted in
an unfair labour practice dispute, where the word discretion is used in a wider sense.
A court will not be exercisin g a discretion in the narrower sense. Therefore there will
be no choice between permissible alternatives involved.
(c) The court emphasised that when making a value judgment, applying the
principles of fairness is not justified, as s 9(1) contains no provi sion for the
application of such principle. Not only is it contrary to the basic concept of community
of property but there is no provision in s 9 for the application of such a principle. It
held further that in considering the appeal the court is therefore not limited by the
principles set out in Ex parte Neethling and Others 1951 (4) SA 331 (A) and it may
differ from the court a quo on the merits. It is only after the court has concluded that
a party would be unduly benefited that it is empowered to order a forfeiture of
benefits, and in making this decision it exercises a discretion in the narrower sense.
(d) Furthermore, the Wijker judgment states that notwithstanding the introduction
of the no fault principle in divorce, a party’s misconduct may be taken into account in
considering, in terms of s 9(1), the circumstances which gave rise to the breakdown
of the marriage. Additionally, ‘substantial misconduct may include conduct which has
nothing to do with the breakdown of the marriage and may for that and other reasons
have been included as a separate factor. Too much importance should, however, not
be attached to misconduct which is not of a serious nature.’ 5 It must be found that it
is so obvious and gross that it would be repugnant to justice to let the ‘guilty’ spouse
get away with the spoils of the marriage.
(e) In Engelbrecht v Engelbrecht 1989 (1) SA 597 ( C) the court held that it could
never have been the intention of the legis lature that a wife, who had for 20 years
assisted her husband faithfully should, because of h er adultery, forfeit the benefits of
4 Ibid at 727D-F.
5 Ibid at 721G-H.
13
the marriage in community of property. This confirmed the principle that the finding of
substantial misconduct does not on its own justify a forfeiture order.
[29] The principles in Wijker were endorsed by this Court in Botha v Botha 2006
(4) SA 144 (SCA) where it confirmed that only the factors in s 9(1) should be
accorded consideration. This Court in Botha pointed out that the -catch-all phrase,
permitting the court, in addition to the factors listed, to have regard to ‘any other
factor’ was conspicuously absent from s 9. It further held that s 9(1) should be
construed within the context of the evidence tendered by the parties in court.
[30] In Badenhorst v Badenhorst [2005] ZASCA 116; 2006 (2) SA 255 (SCA),
though dealing with the provisions of s 7(3) of the Divorce Act , this Court also
endorsed the principle that the factual consideration of issues raised in s 7(3) cannot
be a matter of a discretion. It restated the principle that one party to the marriage
cannot control and abuse the assets of a joint estate as if he has marital power in the
case where assets were beyond the reach of the other party. This principle should
equally apply to the consideration of the forfeiture order sought by spouses married
in community of property and profit and loss as they hold undivided shares in the
joint estate. The Matrimonial Amendment Act has long abolished marital power in
South Africa.
[31] In BS v PS [2018] ZASCA 37; 2018 (4) SA 400 (SCA) para 10 -11 (BS v PS),
this Court in considering an appeal from the Eastern Cape Division of the High
Court, Grahamstown , found that the court below should not have focussed on an
isolated incident of adultery by one of the spouses instead of considering the
duration of the marriage and circumstances whi ch gave rise to the breakdown of the
marriage.
Analysis and Evaluation
[32] The applicant submits that the findings of the full court were out of kilter with
the oral evidence and legal submissions made before the high court. One such
finding is that the applicant condoned the adulterous relationship between Eva and
the respondent and thereby waived her rights to rely on that ground in her quest for
an order for a partial forfeiture of benefits. It is common cause that condonation had
not been raised in the pleadings nor ventilated during the trial before the high court.
14
The full court raised it mero motu. The full court impermissibly canvassed a different
case than that which was before the high court. I t acted outside the context of the
appeal. It was impermissible as it had an adverse effect on the rights of the applicant
and the case made out before the High Court.
[33] It is trite that a court should not pronounce upon a claim or defence not raised
in the pleadings. In Member of the Executive Council, Department of Education,
Eastern Cape v Komani School and Office Suppliers CC t/a Komani Stationers
[2022] ZASCA 13; 2022 (3) SA 361 (SCA) para 53 , the court emphasised, with
reference to Fischer, that:
‘One of the enduring tenets of judicial adjudication is that courts are enjoined to decide only
the issues placed before them by the litigants. And that it is not open to court to change the
factual issues presented by the parties or introduce new issues.’
This was a misdirection on the part of the court. It failed to appreciate the trite
principles laid out in Wijker, which advocate a two-step process.
[34] It misunderstood the concept of a value judgment . First, it found that the
applicant’s conduct in running a cash loan business known as Mogasehla led to the
demise of the family b usiness, Mokgatshehla, and that that amounted to substantial
misconduct on the part of the applicant. Second, it found that the respondent
contributed to the educational n eeds of the children . Finally, in concluding that by
‘taking into consideration the duration of the marriage of the appellant and the
respondent, the circumstances that led to the breakdown of their marriage and that
both parties have committed substantial misconduct, an undue benefit will not accrue
to one party in relation to the other if an order for forfeiture is not granted’ , the full
court misdirected itself . These were factually incorrect conclusions as the full court
failed to apply the two pronged approach advocated in the Wijker judgment.
[35] The full court failed to take cognisance of the evidence of the applicant in that
she could not accord the respondent conjugal rights due to fear of contracting the
HIV/Aids virus, with its deadly consequences. When considering her testimony in its
context, it is clear that the applicant never gave the respondent permission to
continue with extramarital affairs. In fact, the applicant’s evidence was that when she
15
took the respondent for counselling on 29 November 2007, he told the
psychotherapist that he would never stop having extramarital relationships.
Furthermore, it was not the respondent’s case that t he applicant condoned his
extramarital relationships. The applicant became aware of the respondent’s
relationship with Eva only in July 2007. To show disdain for the relationship, she had
dismissed Eva from their employment. On every possible interpretation or
evaluation, I cannot subscribe to the conclusion that the applicant condoned the
respondent’s extramarital relationship with Eva.
[36] The trite principle is as follows ‘an appellate court can only interfere in the
exercise of such discretion in limited circumstances; for example, if it is shown that
the court a quo has misdirected itself by taking irrelevant considerations into
account; that it has exercised its discret ion for no substantial reason; that the
discretion was not exercised judicially or was exercised based on a wrong
appreciation of the facts or wrong principles of law’. (See Gaffoor NO and Another v
Vangates Investments (Pty) Ltd and Others [2012] ZASCA 52 ; 2012 (4) SA 281
(SCA) para 38).
[37] Furthermore, the judgment in Wijker empowers the appeal court to reconsider
the facts where the trial court failed to do so. I now consider the evidence which was
presented before the high court in making a finding whether the respondent will be
unduly benefitted as the applicant contends. The respondent’s prolonged
extramarital affair with Eva was not an isolated incident, but a prolonged relationship
which existed up to the time when the respondent filed for divor ce. It was gross,
repugnant and humiliating as it was unashamedly flaunted in the public domain to
the prejudice of the applicant. At the time of the dissolution of the marriage it had run
for over nine years. The respondent only filed for divorce once nothing was left in the
joint estate, save for the applicant’s pension interest and a few assets. The
respondent bankrolled Eva at the expense of his family , in that he set up various
business interests with Eva . The applicant had to approach the maintenance court
for the education of her children, where she also learned for the first time about the
existence of other children of the respondent born out of wedlock. The respondent
made very minimal contributions for the benefit of the joint estate, though he had
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established several businesses with Eva. The applicant solely depended on her
salary as an educator.
[38] On the other hand, the respondent made no allegation of extramarital
relationships against the applicant. He divorced her on the grounds of her failure to
accord him conjugal rights , which cannot be regarded as a misconduct given the
reasons she advanced for her refusal. The respondent’s evidence, which the court
below failed to appreciate, was riddled with contradictions and inconsistencies. He
pleaded that he did not own any business interests with Eva, only to be confronted
with documentary evidence to the contrary. This was incontrovertible evidence which
had led to the demise of the family business interests.
[39] The fact that he channelled assets of th e joint estate to set up business
enterprises with Eva undoubtedly constitutes misconduct. Furthermore, he withdrew
from one of the close corporations but failed to take the value of his member’s
interest, thereby depriving the joint estate of an asset. No tably, there is no evidence
of him having made any contribution towards the applicant’s pension. Eva was an
employee at the family business, but was able to open a string of business shortly
after being dismissed from her employment . I am satisfied that th e evidence
presented before the trial court showed substantial misconduct on the part of the
respondent.
[40] In sum, there can be no question that the applicant satis fied the requirements
of s 9(1), particularly that the respondent would be unduly benef ited if the order for
partial forfeiture is not granted. The applicant made direct financial contributions to
the joint estate , as opposed to the respondent who used almost all his financial
resources for the benefit of Eva. The uncontroverted evidence of the applicant, in
fact, shows that the respondent’s outside interests far more exceeded what he
contributed to the joint estate, the long -existing relationship with Eva conducted in a
brazen and humiliating fashion to the applicant and the duration of the marriage. The
duration of the marriage indicate s the burden of the joint estate on the applicant.
The respondent considerably eroded the value of the joint estate, and used the
assets of the joint estate as if he had the marital power to do so, contrary to the
proprietary regime of the marriage in community of property.
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[41] The applicant led sufficient and corroborated evidence in support of her claim
for an order for partial forfeiture of benefits. The respondent’s evidence fell short in
various ways, including that it was inconsistent, contradictory and did not support his
claim for a half share in the applicant’s pension interest. The claim by the respondent
of 50% of the pension benefits which has accrued to the applicant is not sustainable.
I have also taken into consideration that he abused the joint estate resources for
years for the benefit of Eva, he failed to adequately provide for the joint estate and
the duration of the marriage.
[42] The authorities cited above justify the granting of an order of forfeiture of the
half share of pension benefits against the respo ndent. Accordingly, I make the
following order:
1 Condonation for the late filing of the application for special leave to appeal the
order of the full court dated 23 March 2021 is hereby granted.
2 Special leave to appeal the judgment and order of the f ull court, Limpopo
Division of the High Court, Polokwane, dated 23 March 2021 is granted.
3 The appeal is upheld with costs and the order of the abovementioned full
court is set aside and substituted as follows:
‘4.1 The appeal is upheld with costs.’
4.2 Paragraphs (c) and (d) of the order of the High Court ( MG Phatudi J) are set
aside and substituted as follows:
‘(c) The defendant’s counterclaim succeeds.
(d) The patrimonial benefits of the parties’ marriage in community of property in
respect of the de fendant’s pension benefits and interest held in the Government
Employee Pension Fund are forfeited by the plaintiff in favour of the defendant.’
_______________________
Y T MBATHA
JUDGE OF APPEAL
APPEARANCES
For First to Fifth Appellant: M G Haskins (with him I Ossin)
Instructed by: DDKK Attorneys Inc., Polokwane
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Phatshoane Henney Attorneys, Bloemfontein
For Respondents: No Appearance
Instructed by: Mulisa Mahafha Attorneys, Polokwane