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2023
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[2023] ZAFSHC 247
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P.M.M v T.N.M and Others (282/2021) [2023] ZAFSHC 247 (22 June 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
FAMILY – Divorce – Forfeiture – Parties
lived separately for 22 years – Plaintiff seeks divorce and

division of joint estate – Customary marriage between
defendant and plaintiff is valid – Subsequent civil marriage

between first and second defendant is null and void –
Whether defendant established specific benefits – Failure
to
establish specific benefits – Counterclaim for forfeiture
cannot succeed – Division of the joint estate including

defendant’s pension funds granted –
Divorce Act 70 of
1979
,
s 9(1).
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number:
282/2021
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In the matter between:
P[…]
M[…] M[…]
Plaintiff
And
T[…]
N[…] M[…]
1
st
Defendant
N[…]
L[…] M[…]
2
nd
Defendant
DEPARTMENT
OF HOME AFFAIRS
3
rd
Defendant
SALA
PENSION FUND
4
th
Defendant
CORAM:
LOUBSER, J
HEARD
ON:
30, 31 MAY and 2
nd
JUNE 2023
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
The judgment
was handed down electronically by circulation to the parties’
legal representatives by email and released to
SAFLII on 22 JUNE
2023. The date and time for hand-down is deemed to be 22 JUNE 2023 at
15:00
[1]
This is a divorce action where the plaintiff, mrs. P. M. M[…],
claims a decree of divorce
and division of the joint estate,
including the pension funds held with the 4
th
defendant,
from her husband, the 1
st
defendant. The 2
nd
defendant is the purported new wife of the 1
st
defendant.
Whereas the matter initially seemed to be quite straight-forward, it
soon appeared to be more complicated when the 1
st
defendant filed a counterclaim to the plaintiff’s summons,
claiming an order for forfeiture of patrimonial benefits against
the
plaintiff. During the course of the trial, four witnesses testified
under oath, including the plaintiff and the 1
st
defendant.
[2]
Before the commencement of the trial proceedings, the parties reached
agreement to the following effect:
2.1.
That the customary marriage between the 1
st
defendant and
the plaintiff is a valid customary marriage in terms of the
Recognition of Customary Marriages Act.
2.2.
That the said marriage still subsists.
2.3.
That the subsequent civil marriage between the 1
st
and 2
nd
defendant in March 2020 is null and void.
2.4.
That the only issue remaining for adjudication by the court would be
the question of the division of the
joint estate.
2.5.
That the only issue would then be the question of forfeiture of
matrimonial benefits.
[3]
The evidence before the court provides a reflection of the hardships
many black families had to
endure during the 1980’s and the
1990’s. These hardships existed in poor socio-economic
circumstances, unemployment
and little opportunities, that caused
many fathers and husbands to work on the mines far away from home, or
as migrant workers
in other areas of employment. Sadly, this was also
the fate of the M[…] family. The 1
st
defendant had
to leave the plaintiff and their three daughters at his parental home
in Sterkspruit while he went to work on the
mines at Orkney. In 1995
he left the mines to return to Sterkspruit. Around 1998 the plaintiff
made her way to Bloemfontein to
find employment, leaving the children
and the 1
st
defendant behind in Sterkspruit with her
mother-in-law. Not long thereafter the 1
st
defendant also
moved to Bloemfontein, where he eventually found employment. The
marriage relationship was not destined to survive
such adverse
circumstances, and for the next 22 years the plaintiff and the 1
st
defendant lived in Bloemfontein, but not under the same roof. They
lived completely separated. As the children grew up, they one
by one
also came to Bloemfontein, where they lived with their farther.
[4]
Since the 1
st
defendant carried the onus to prove that a
forfeiture order should be made, he was the first witness to testify.
He testified that
he and the plaintiff became husband and wife in a
traditional marriage ceremony in 1980. When he came back from the
mines in 1995,
he bought a vehicle to transport people. The plaintiff
was unemployed. When he came home some day in 1998, he found that the
plaintiff
had left. He did not know where she had gone. She had left
the children behind with his mother. They were at school. The next
year
he moved to Bloemfontein, where he found employment with the
municipality as a driver. He did not know the plaintiff’s
whereabouts,
she did not tell him. Later on, the children came to
live with him, and he became responsible for their schooling and
their upbringing.
The plaintiff never came to visit the children at
his place, he testified. The children are now adults. According to
him, he saw
the plaintiff again for the first time here in court
after all the years. He went on retirement at the municipality in
2021.
[5]
In cross-examination the 1
st
defendant testified that his
assets consist of his home. He obtained his pension money in 2021.
The plaintiff never contributed
to the upbringing of the children, he
testified. He denied that the plaintiff helped him to find employment
in Bloemfontein, or
that she had visited the children from time to
time.
[6]
The plaintiff testified that she never deserted the 1
st
defendant and the children. She came to Bloemfontein to find
employment because the 1
st
defendant failed to provide
adequately for her and the children. In Bloemfontein she found
employment as a domestic worker with
a mr. S[…], who is a CEO
at the “Glaspaleis”, meaning the municipality. She has
her own quarters on the premises
of mr. S[…], where she lives.
She denied that she had ever deserted the children. She had
contributed funds and clothes
for the children and for the 1
st
defendant’s mother through the years. She earns R3 500.00
per month. Through the assistance of mr. S[…], she
obtained
employment for the 1
st
defendant at the municipal library
as a driver. He was later transferred to the fire department. A
number of years ago the 1
st
defendant acquired a house in
a place called Mafura outside Bloemfontein. She used to see him there
when she went there to visit
the children on a regular basis. She
regard this house as her home, she testified. Since 2018 there was no
longer any relationship
between her and the 1
st
defendant,
and he got married again in 2020. When she visited the children at
Mafura, she always took groceries for the children.
She even
contributed to the building of the house in Mafura by cooking food
for the builders and providing them with water. She
did not
contribute to the 1
st
defendant’s pension fund.
[7]
The next witness was the first daughter of the plaintiff and the 1
st
defendant, B[…] Mb[…]. She is now 41 years old and
married. She denied that the plaintiff had disappeared from their

lives in 1998. While working in Bloemfontein, the plaintiff often
come to visit her and her younger sisters. After the year 2000,
when
the witness moved to Bloemfontein to live with the 1
st
defendant in Mafura, the plaintiff came to see her on a regular
basis, and provided her with clothes and money to take to school.
In
giving testimony, she was adamant that her mother, the plaintiff, was
always present in the lives of her children, and that
she had never
abandoned them.
[8]
The last witness was P[…] M[…], the next daughter of
the plaintiff and the 1
st
defendant. She is now 36 years
old. She testified that after her mother had left Sterkspruit to work
in Bloemfontein, she came
to visit her children every holiday. She
then bought them school uniforms, clothes and food. When she later
lived with the 1
st
defendant in Mafura, the plaintiff
visited her children there on a regular basis and continued to
support them, she testified.
[9]
I now turn to the legal principles
applicable to the forfeiture of patrimonial benefits when a decree
of
divorce is granted. In this respect
section 9(1)
of the
Divorce
Act
>
[1]
provides
as follows: “ 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 benefits 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 break-down
thereof and any
substantial misconduct on the part 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 benefited.”
[10]
Through the years, our courts have pronounced itself in clear terms
how the provisions of
section 9(1)
should be approached and applied.
As early as 1989 the Cape High Court pointed out in
Engelbrecht
v Engelbrecht
[2]
that
joint ownership of another party’s property is a right which
each of the spouses acquires on concluding a marriage in
community of
property. Unless the parties make precisely equal contributions, the
one that contributed less shall on dissolution
of the marriage be
benefited above the other if forfeiture is not ordered. The court
went on to state that
section 9
does not give the greater contributor
the opportunity to complain about this. He can only complain if the
benefit was undue. At
601H of the judgement the court stated that,
unless it is proved what the nature and extent of the benefit was,
the court cannot
decide if the benefit was undue or not. Only if the
nature and ambit of the benefit is proved, is it necessary to look to
the factors
which may be brought into consideration in deciding on
the inequity thereof. Here the court obviously referred to the three
factors
mentioned in
section 9
that the court has to consider.
[11]
This approach has been endorsed by the Supreme Court of Appeal
[3]
and
followed by courts of this division
[4]
on a
number of occasions. In the Wijker-case it was stated
[5]
that
the first step is to determine whether or not the party against whom
the order is sought, will in fact be benefited.
Once that has
been established the court must determine, having regard 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. In the NWP-matter, the court of
appeal stated the
following:
[6]
“
The
court
a
quo
,
having regard to the approach set out in the Wijker-matter, found
that the appellant’s counterclaim and evidence failed
to
establish the specific
benefits
of the marriage in
community
of property and that it was therefore not necessary to proceed to the
second step of determining whether or not the respondent
would be
unduly benefited. As a result, the court
a
quo
did
not consider the evidence of the alleged misconduct of the
respondent. In my view the court
a
quo
cannot
be faulted in this regard.”
[12]
In the present matter, the question is then
whether the 1
st
defendant has managed to establish the
specific benefits of the marriage in community of property, in order
to enable the court
to decide whether the plaintiff will be unduly
benefited if a forfeiture order is not made, having regard to the
three factors
mentioned in
section 9.
[13]
Unfortunately the 1
st
defendant failed to establish the
specific benefits. All that he could say, was that his home
represented an asset in the marriage
in community of property, but he
did not give any evidence as to the value of that home. He also did
not provide any information
regarding the value of his pension fund,
the amount that was paid out to him from that fund in 2021, if any,
and the amount of
the funds that are still available in the pension
fund. The court is therefore completely in the dark as far as the
specifics of
the benefits in the marriage in community of property is
concerned. It follows that the court is not in a position to
establish
whether the plaintiff will be unduly benefited if an order
of forfeiture is not granted against her. The counterclaim for
forfeiture
therefore cannot succeed.
[14]    On
the other hand, there can be no doubt that a decree of divorce should
be granted, as prayed for by the
plaintiff. The 1
st
defendant does not take issue with this aspect of the plaintiff’s
claim. I can also find no reason why the remaining prayers
contained
in the summons should not be granted.
[15]    In
the premises, the following orders are made:
1.
The plaintiff’s customary marriage to the 1
st
defendant on or about 6 December 1980, is declared a valid marriage
in terms of the Recognition of Customary Marriages Act 120
of 1998.
2.
The 3
rd
defendant is ordered to register the marriage
between the plaintiff and the 1
st
defendant as such.
3.
The marriage entered into between the 1
st
and 2
nd
defendants on 12 March 2020 is declared null and void
ab initio
,
and the 3
rd
defendant is ordered to remove the
registration of such marriage from its records.
4.
A decree of divorce in the marriage between the plaintiff and the 1
st
defendant is hereby granted.
5.
A division of the joint estate of the plaintiff and the 1
st
defendant is hereby ordered, which joint estate includes the 1
st
defendant’s pension funds held with the 4
th
defendant.
6.
The 1
st
defendant is ordered to pay the plaintiff’s
costs in the main action.
7.
The 1
st
defendant’s counterclaim is dismissed with
costs.
P. J. LOUBSER, J
For
the Plaintiffs:
Mr.
A. C. Mlozana
Instructed
by:
Mlozana
Attorneys, Inc.
Bloemfontein
For
the Defendant:
Mr.
N. W. Phalatsi
Instructed
by:
N.
W. Phalatsi and Partners
Bloemfontein
[1]
Act
70 of 1979
[2]
1989(1)
SA 597 (CPD)
[3]
Wijker
v Wijker
1993 (4) SA 720
(AD)
[4]
See
for instance NWP v MHP case no. A201/2013 (unreported) and Lesia v
Lesia case no. 450/2013 (unreported)
[5]
At
727 E of the judgement
[6]
At
par 17 of the judgement