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[2016] ZAGPJHC 64
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K v Government Employees Pension Fund and Another (A3058/2015) [2016] ZAGPJHC 64 (30 March 2016)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO:A3058/2015
DATE: 30 MARCH 2016
In the matter between:
[P……..] [J……..]
[K……..]
.....................................................................................................
Appellant
And
GOVERNMENT EMPLOYEES PENSION
FUND
.....................................................
1st
Respondent
[M……..] [E……..]
[K……..]
........................................................................................
2nd
Respondent
J U D G M E N T
MASHILE J:
[1] This appeal emanates from the court
a quo, the Regional Divorce Court for the Regional Division of
Gauteng Held at Johannesburg.
It is directed against Magistrate
Chatrim’s refusal to grant an order entitling the Applicant to
50% of the Second Respondent’spension
interest administered by
the First Respondent.
[2] The Appellant’s and the
Second Respondent's marriage in community of property legally ended
on 24 August 2010, on which
date the court a quo granted a final
decree of divorce. The court a quo decreed, among other things,
that the joint estate
of the parties shall be divided between them
but did not make a specific order that 50% (or any other portion) of
the Second Respondent’s
pension interest shall be paid by the
First Respondent to the Second Respondent when the pension benefit
accrues to the Second
Respondent and for an endorsement to that
effect in the First Respondent’s records.
[3] While there is an order that the
joint estate be divided, to date the parties have neither concluded
an agreement for the division
nor have they appointed a receiver and
liquidator to assist them with the division. The Appellant
avers that her intention
had always been, when seeking a decree of
divorce, to apply for the endorsement in the First Respondent’s
records that 50%
of the Second Respondent’s pension interest be
paid to her when the pension benefits accrues to the Second
Respondent.
[4] Shortly before the finalization of
the divorce, however, the Appellant went into a depression for which
she received treatment.
The Appellant recovered from the
depression well after the court a quo had granted the divorce
decree. She is now desirous
of finalizing the division of the
estate. Since the divorce decree does not include an order
directing the First Respondent
to pay to the Appellant 50% of the
Second Respondent’s pension interest, as at the date of
divorce, when the pension benefits
accrue to the Second Respondent
and to endorse its records to this effect, she deemed it necessary to
approach the Court a quofor
a declaratory order in those terms.
[5] It is the declaratory order that
the court a quo declined to entertain on the basis that the Appellant
had furnished no reasons
for it. Like the proceedings in the
court a quo, the appeal was not opposed and there was no appearance
on behalf of the
Respondents when the matter was argued. The
Appellant is appealing the refusal of the application on the ground
that the
court a quo erred by refusing to entertain her application
merely because she had failed to furnish reasons why she did not
apply
for an order that 50% of the Second Respondent’s pension
interest at the date of divorce should be paid to her when the
pension
benefits accrue to the Second Respondent and for such
endorsement in the First Respondent’s records at the time of
the divorce
trial.
[6] Against that background, this Court
has to determine whether or not:
6.1 The Second Respondent’s
pension interest formed part of the joint estate of the parties at
the time of their divorce;
and
6.2 it is still competent forthe
Appellant to apply for an endorsement in the records of the First
Respondent that 50% of the Second
Respondent’s pension interest
at the date of divorce is paid to the Appellant when the pension
interest accrues to the Second
Respondent where a court has already
granted a divorce decree dissolving a marriage in community of
property without an accompanying
order directing such an endorsement
in the First Respondent’s records.
[7] The Appellant contended that for
her to succeed, she needs only establish the following:
7.1 She was married to the Second
Respondent in community of property;
7.2 The marriage was terminated by an
order of court on 24 August 2010;
7.3 There is no direction in the
divorce decree that the records of the First Respondent must be
endorsed so that the Appellant’s
50% share of the Second
Respondent’s pension interestat the date of divorce can be
calculated;
7.4 Although a court has ordered a
division of the joint estate, the parties have not yet embarked on
that process.
[8] The legal position concerning
this issue is contained in
Section 7(7)
and (8) of the
Divorce Act
No. 70 of 1979
, which provides:
“(a) In the determination of
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.
(b) The amount so deemed to be part of
a party’s assets, shall be reduced by any amount of his pension
interest which, by
virtue of paragraph (a), in a previous divorce –
(i) Was paid over or awarded to
another party; or
(ii) For the purposes of an
agreement contemplated in subsection (1), was accounted in favour of
another party.
(c) Paragraph (a) shall not apply
to a divorce action in respect of a marriage out of community of
property entered into on
or after 1 November 1984 in terms of an
antenuptial contract by which community of property, community of
profit and loss and the
accrual system are excluded.
(8) Notwithstanding the provisions of
any other law or the rules of any pension fund –
(a) The court granting a decree of
divorce in respect of a member of such a fund, may make an order
that–
(i) Any part of the pension interest of
the member which, by virtue of subsection (7), is due or assigned to
the other party to
the divorce action concerned, shall be paid by the
fund to that other party when any pension benefits accrue in respect
of the
member;
(ii) The registrar of the court in
question forthwith notify the fund concerned that an endorsement be
made in the records of that
fund that that part of the pension
interest concerned is so payable to the other party and that the
administrator of the pension
fund furnish proof of such endorsement
to the registrar, in writing, within 1 month of receipt of such
notification;
(b) Any law which applies in relation
to the reduction, assignment, transfer, cession, pledge,
hypothecation or attachment of the
pension benefits, or any right in
respect thereof, in that fund, shall apply mutatis mutandis with
regard to the right of that
other party in respect of that part of
the pension interest concerned.”
[9] In the case of Sempapalele v
Sempapalele 2001(2) SA 313 (O)Musi J took the view that
Section 7(7)
requires a party seeking the endorsement in the records of a pension
fund that the pension interest is payable to him/her has to
apply for
an order in terms of
Section 7(8)
at the hearing of the divorce.
The upshot of lack of compliance with
the section would lead to a court denying the applicant an
opportunity to do so at any other
time post the divorce, it being
irrelevant that there had not been a division of the joint estate.
[10] Magid J, in Maharaj v Maharaj and
Others
2002 (2) SA 648
(D) differed with Musi J’s approach.
He expressed his disagreement with Musi J’s view in the
following terms:
“….. But, if the learned
Judge intended to hold that, if there is no reference to a spouse's
pension benefit or interest
in a divorce order, the other party to a
marriage in community of property isforever precluded from claiming
to be entitled, as
his or her share of the joint estate, to a
half-share thereof, I am, with respect, unable to agree with
that view.”
[11] Although Goosen J in Fritz v Funds
at work Umbrella Pension Fund and Others (2323/2011) [2012] ZAECPEHC
57;
2013 (4) SA 492
(ECP) agreed with Magid J, he eventually
dismissed the case of the applicant as it was clear that the parties
had concluded an
agreement by which they divided the joint estate.
It appears from the above that except for the Sempapalele case supra
that
adopts the approach that a decree of divorce must include an
order in terms of
Section 7(8)
, the majority of the courts that have
expressed an opinion on the subject hold the view that provided the
joint estate has not
been divided, a party can still obtain relief in
the terms claimed by the Appellant in this matter.
[12] All the cases to which I have
referred above express the view that the introduction of
Section 7
of
the
Divorce Act No. 70 of 1979
was to address the rather iniquitous
exclusion of a pension interest from the one spouse in a marriage in
community of property
by including a spouse’s pension interest
in the joint estate. While the Sempapalele case supra adopts
this approach
as well, the only qualification is that it does not
appreciate that as a fact that unfolds axiomatically from the
provision of
the section; rather it envisages that a party must apply
for the inclusion thereof.
[13] This court, like the Maharaj and
the Fritz cases supra, is of the opinion that
Section 7
is designed
to depart from the situation that prevailed prior to the introduction
of
Section 7.
Accordingly, no need existed for the Appellant to
have made an application for the inclusion of the Second Respondent’s
pension interest into the joint estate.
[14] Again, on the question whether or
not the Applicant could apply for the endorsement of the Second
Respondent’s pension
interest well after the date of divorce,
this Court’s approach must be in line with the Maharaj and the
Fritz cases supra
for the simple reason that permitting the Appellant
to do so neither inconveniences nor prejudices the Respondents
because division
has not happened yet. Moreover, lack of
opposition by either Respondent strengthensthe granting of an order
in the terms
prayed for by the Applicant.
[15] In the result, the appeal succeeds
and I make the following order:
1.The order of the court a quo is set
aside and is substituted for:
“1.1 The Applicant (Appellant) is
entitled to 50% of the pension interest of the Second Respondent,
administered by the Government
Employees’ Pension Fund up to
the date of divorce;
1.2 50% of the Second Respondent’s
pension interest which is due to the Appellant shall be paid by the
Government Employees’
Pension Fund to the Appellant when the
pension benefits accrue to the First Respondent and an endorsement to
this effect shall
be made in the First Respondent’s records;
1.3 Condonation for the late filing of
the application is granted;
1.4 No order as to costs.”
B A MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
I agree,
S K HASSIM
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Appearances:
Counsel for the Applicant:
MrMthenjwa David Hlatshwayo
Instructed by: HLATSWAYO-MHAYISE INC
Attorneys for 2nd Respondent: No
appearance
Instructed by: SHARUSHA MOODLEY
ATTORNEYS
Date of hearing: 02 February 2016
Date of Judgment: 30 March 2016