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[2023] ZAFSHC 350
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M.M.K v V.S.K (4324/2021) [2023] ZAFSHC 350 (7 September 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
–
Plaintiff
using pension payout prior to divorce for herself and investing
some of it – Behaved in a selfish and self-centred
manner
towards the defendant and rendered herself guilty of substantial
misconduct – Only entitled to 25% of the defendant’s
pension interest – From this and monies invested from her
pension payout she is in position to maintain herself and
pay for
her own medical aid –
Divorce
Act 70 of 1979
,
s
9.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: No
of interest to other
judges: No
Circulate to
Magistrates No
Case
no: 4324/2021
In
the matter between:
M[…]
M[…] K[…] (BORN M[…])
Plaintiff
(ID
NO: 531[…])
and
V[…]
S[…] K[…]
Defendant
(ID
NO: 581[….])
CORAM:
MTHIMUNYE AJ
HEARD
ON:
25, 26
and 31 JULY 2023
DELIVERED
ON:
07 SEPTEMBER 2023
[1]
In this divorce action, the Plaintiff prays for an order in the
following terms:
(a)
A decree of divorce;
(b)
Division of the joint estate;
(c)
An order that the Defendant shall pay the Plaintiff an amount of
R14 000.00
(Fourteen Thousand Rand) per month as spousal
maintenance commencing on the first day of the month following the
month in which
a decree of divorce is granted and thereafter on or
before the 1
st
day of each and every succeeding month;
which maintenance to escalate annually by the headline inflation
rate.
(d)
An order directing the Defendant to retain the Plaintiff as a
beneficiary
on his medical aid plan post retirement and pay for all
ancillary medical costs not covered by the medical aid.
(e)
An order that the Plaintiff is entitled in terms of
section 7(8)(a)
of the
Divorce Act 70 of 1979
as amended, to payment of 50% of the
Defendant’s pension interest in the Provident Fund of the
University of the Free State
with member number 97915 as calculated
from the date of divorce.
(f)
An order that the Provident Fund of the University of the Free State
must endorse its records to the effect that the Plaintiff is entitled
to 50% of the Defendant’s pension interest as at the
date of
divorce, and pay to the Plaintiff her share of the Defendant’s
pension interest as referred to herein within 120
days after having
been informed of how the amount must be dealt with in accordance with
the Plaintiff’s election.
(g)
Costs of suit.
[2]
The Defendant in his plea raised a counterclaim in terms of which he
prays for forfeiture
in terms of Section 9 of the Divorce Act 70 of
1979 (“the
Divorce Act&rdquo
;). Further the Defendant pleaded
that he will keep the Plaintiff on his medical aid until date of
retirement which is 31 December
2023, however, post retirement he
will no longer be fully subsidised and as such will not be able to
keep the Plaintiff on the
medical aid. The Defendant further pleaded
that he cannot afford the R14 000.00 per month spousal
maintenance claimed by the
Plaintiff.
[3]
The parties were married to each other in community of property on 05
February 2000.
Marriage in community of property entitles
the parties to 50% of the joint estate on the dissolution of
marriage. The only exception
to this principle is
section 9
of the
Divorce Act and
which enables the court to grant forfeiture when the
court is satisfied that the party against whom it is sought, will be
unduly
benefitted if it is granted.
[4]
At the commencement of the trial, both parties recorded that they are
in agreement
that the marriage has irretrievably broken and therefore
both seek a decree of divorce and the division of the joint estate,
but
for the Defendant’s pension fund.
[5]
In dispute, and what this court is called upon to determine are the
following issues:
The forfeiture of the Defendant’s pension
funds by the Plaintiff, the retention of the Plaintiff as a
beneficiary on the
Defendant’s medical aid post the Defendant’s
retirement, and payment of spousal maintenance of R14 000 per
month
by the Defendant.
Forfeiture
of the Defendant’s Pension Interest
[6]
The Plaintiff seeks an order entitling her to 50% of the Defendants’
pension
whilst the Defendant has prayed for forfeiture in terms of
section 9
of the
Divorce Act as
stated above.
[7]
Section 9(1)
of the
Divorce Act provides
:
“
9(1) 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 of
forfeiture is not made, the one party will
relation to the other be
unduly benefited.”
[8]
The onus to prove that the party against whom forfeiture is sought
will be unduly
benefited rests on the party who seeks it. The
Defendant basis his prayer for forfeiture on the following reasons:
that when the
Plaintiff received her pensions in January 2014, she
told him that the money was for her and her children and refused to
contribute
meaningfully to the joint estate, instead she gave
R20 000.00 to her son without discussing same with him.
According the Defendant,
the Plaintiff never discussed with or
informed him what she has done with the rest of her money.
[9]
The Defendant further testified that despite the parties having had
an agreement that
she would pay off the loan they had taken to extend
the house when she retires, on retirement, the Plaintiff refused to
settle
the loan and argued that the money was hers and her
children’s. Although she later on paid R30 000.00 towards
the loan,
this was only in 2020. At some point the son of the
Plaintiff confronted the Defendant about wanting his ‘mother’s
money’ and threatened him that if that is the case, the
marriage might as well end. Afterwards he apologised but the
Defendant
never asked about this money until the Plaintiff left the
marital home in 2021.
[10]
Consequently, the Defendant argues that the Plaintiff will be unduly
benefited were she to benefit
from the Defendant’s pension
benefit whereas he did not benefit from hers. For purposes of
clarity, the Plaintiff received
an amount of R273 986.20 as her
pension pay out on 28 January 2014. During her evidence in chief the
Plaintiff counted a number
of items (including paving the yard,
sofas, built-in cupboards, buying a shack, paying for the daughter’s
wedding) she claims
she paid for with her pension money and thus
contributed to the joint estate. When confronted with the Defendant’s
version
during cross-examination, she conceded that most of these
were paid for by both parties long before she got her pension pay
out,
some even years before. In conceding, she blamed her memory loss
to diabetes.
[11]
It became clear during evidence that both parties contributed equally
and according to their
means during the subsistence of the marriage
with the Defendant paying for the bond and municipality rates whilst
the Plaintiff
paid for food and upkeep of the home. After receiving
her pension pay out in 2014, the Plaintiff only paid for the
following items:
(a) She settled the
outstanding bond for an amount of R30 000.00 in March 2020.
(b) She paid for
the pivot door and the aluminium kitchen door, both amounted to
R14 000.00 even though this amount was
disputed by the Plaintiff
on the basis that the doors were not the same size and could not have
caused R7 000 each.
(c) She paid
R10 000.00 towards their car, a Chevrolet.
[12]
It is unrebutted evidence that on receipt of her own pension, the
Plaintiff informed the Defendant
that her pension monies belonged to
her and her children. It was also clear to the court that indeed the
Defendant only became
aware of the fact that some monies from the
Plaintiff’s pension fund were invested in ABSA and Capitec from
the court papers.
The Defendant was a candid, reliable and credible
witness, who was honest enough to confirm the truth told by the
Plaintiff e.g.
when asked about the sofas he said ‘
she is
telling the truth, we bought the sofas in 2013. I remember because
the R6.500 came from me. I used my bank card”.
The
Plaintiff on the other hand, was hell bent on painting the Defendant
as an irresponsible husband who did nothing for the marriage
after
the 5
th
year of marriage and when caught out, she would
blame her forgetfulness on diabetes and being tired.
[13]
The Plaintiff has argued that in terms of
section 7(8)(a)
of the
Divorce Act 70 of 1979
, as amended, she is entitled to 50% of the
Defendant’s pension interest from date of inception to the date
of divorce. I
deem it necessary to cite herein the relevant
provisions of
Section 7of
the
Divorce Act: Section
7(7)(a) read 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.
(b) …
(c) …
“
(8)
Notwithstanding the provision of any other law or of 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 that member which, by virtue of subsection
(7), is due to or assigned to the other party to the divorce
action
concerned, shall be paid by that fund to that other party when any
pension benefits accrue in respect of that member;
[14]
Section 7
(7) is clear that in the determination of patrimonial
benefits to which the parties in a divorce action may be entitled,
pension
interests are considered to be part of the assets.
Section
7(8)
however, contains no provision entitling a party to 50% share of
the other’s pension interest as claimed by the Plaintiff.
Instead, it contains two phrases which in my view, are pertinent to
the decision that this court is called upon to make. These
are the
use of the word ‘may’, which in my view, points to a
discretion that the court has in making such an order;
and the words
‘
any
part’
.
The latter phrase indicates a further discretion that the court has
i.e. to decide on the percentage. In
Engelbrecht
v Engelbrecht
[1]
,
the court held that “
the
court has a discretion when granting a divorce on the grounds of
irretrievably breakdown of the marriage or civil union to order
that
the patrimonial benefits of the marriage or civil union be forfeited
by one party in favour of the other. The court may order
forfeiture
only if it is satisfied that the one party will, in relation to the
other, be unduly benefited. The court has a wide
discretion, and it
may order forfeiture in respect of the whole or part only of the
benefits”.
[15]
In
Singh
v Singh
[2]
it was held that a court may order that all patrimonial benefits of a
marriage or a percentage of the estate be forfeited. I need
no longer
belabour the point on the court’s discretion in this regard.
[16]
The marriage between the parties had lasted 21 years when the
Plaintiff left the marital home
in April 2021. Both parties differ on
the circumstances that led to the breakdown of the marriage, with the
Plaintiff blaming the
Defendant for neglect whilst the Defendant
blames the Plaintiff’s mental state following the death of her
mother. In any
event, the Defendant is not asking for forfeiture on
the basis of the circumstances leading to the breakdown of the
marriage but
on the basis of substantial misconduct by the Plaintiff.
[17]
In
Wijker
v Wijker
[3]
the
court held that factors listed in
Section 9(1)
of the
Divorce Act
need
to be considered cumulatively. The presence of any one of them
is sufficient for the court to make an order for forfeiture. In other
words, Defendant does not have to prove the present of all three
factors in
Section 9(1).
[18]
In my view, taking all evidence before this court and the Plaintiff’s
conduct and attitude
in respect of her own pension, the Plaintiff
behaved in a selfish and self-centred manner towards the Defendant.
This was clearly
demonstrated not only by what she said to the
Defendant at the time, but by how she then handled her own pension to
the utter exclusion
of the Defendant. It is my considered view that
by behaving in this way, the Plaintiff rendered herself guilty of
substantial misconduct,
which is a factor this court must consider in
determining whether or not it will grant forfeiture.
[19]
In
Tsebe
v Tsebe
[4]
,
which Counsel for the Defendant argued that it is on all fours with
this matter, Mr Tsebe used his pension money solely for himself
to
the exclusion of the joint estate and his wife. The court found him
to have committed substantial misconduct as envisaged in
Section 9(1)
and granted forfeiture against him. In this case however, one must
consider that although the Plaintiff excluded the Defendant
completely in her dealings with her pension money, she contributed
some money into the joint estate by paying off the house loan,
the
car and the pivot doors (R54 000.00) in total. The rest of her
money was out of bounds for the Defendant. Although Counsel
for the
Plaintiff was at pains to explain that the remainder of the money has
been invested with Capitec (R38 029.69 as at
05 July 2023) and
ABSA (R63 891.40 as at 29 June 2023) and as such still available
as part of the joint estate, the point
of the matter, which was very
clear during evidence was that not only was the Defendant not
involved in how the money should be
dealt with, he only became aware
of it during these proceedings. It is my considered view that
the Plaintiff will benefit
unduly if she were to be granted 50% of
the Defendant’s pension benefits. I am persuaded that
considering her contribution
to the joint estate with her pension
money, and deducting the amount that she has invested from her own
pension, she should be
granted a lesser percentage than what she has
asked for. In other words, the Plaintiff will partly forfeit a
certain percentage
of the pension benefits of the Defendant.
Spousal
Maintenance and Medical Aid
[20]
The Plaintiff seeks an order directing the Defendant to pay her
spousal maintenance of R14 000.00
per month. During
evidence, it came out that both parties never disclosed to each other
what each of them earned. The Plaintiff
conceded during
cross-examination that he did not know how much the Defendant earned
as they did not tell each other about their
monies – confirming
that she never informed the Defendant about how she used her pension
monies. It was also clear that the
prayer for an amount of R14 000
per month was made from a position of ignorance since the amount even
exceeds what the Defendant
would be getting on a monthly basis should
he elect taking one third of his pension and monthly pay-out.
She conceded that
this amount would not be feasible for the Plaintiff
to afford. The Plaintiff testified that during the subsistence of the
marriage,
she paid for food and the upkeep of the home, including the
husband’s daughter’s school fees and clothes, whilst the
Defendant paid the mortgage bond for their home and municipality
rates. It was clear to this court that both parties contributed
to
their livelihood and joint estate during the subsistence of the
marriage.
[21]
In assessing whether to grant an order of spousal maintenance in
favour a spouse, the court must
consider the existing and prospective
financial means and earning capacity of each spouse, their financial
needs and obligations,
their ages, the duration of the marriage and
the standard of living during the marriage, the conduct of either
party leading up
to the divorce, any transfer of assets made in terms
of a redistribution order and any other factor which the court
believes should
be considered.
[22]
The Plaintiff testified that at some point even during the
subsistence of the marriage she was
assisted by her son to pay for
food and upkeep. After leaving the marital home three years ago, the
Plaintiff went to live with
her son who is a medical practitioner in
Gauteng for five months and thereafter moved to Bloemanda where she
is renting accommodation
for R6 200.00 per month. Her son gives her
R10 000.00 a month for rent and upkeep. She is unemployed and
although she is 70
years old, she is not receiving a grant as she was
told she was no eligible since her husband is employed. Although it
was argued
that the son bears no legal obligation to support the
Plaintiff, this is a factor that this court has taken into
consideration
[23]
The Defendant, though currently employed and earning in the region of
R20 000.00 a month,
he is retiring on 31 December 2023 at 65. In
the event that he elects an option where her takes one third of his
pension pay-out
and monthly payments, those monthly payments are less
than what the Plaintiff is asking. Counsel for the Plaintiff argued
that
regardless of which pension withdrawal option the Defendant
takes, between taking all his pension out or a portion thereof with
monthly pay-outs, he should still be able to pay for the maintenance
from his lump sum either in monthly instalments or in a form
of
another lump sum. Further, that if the order of this court is
cumbersome to the Defendant, he can vary it at a later stage.
[24]
In my view, the argument that the court can make an order to be
varied at a later stage is nonsensical
and grossly unfair to the
Defendant. First the Plaintiff is asking for her own share of the
pension fund, which she argues is 50%,
and over and above that she
must get bits and pieces of the Defendant’s share in a form of
spousal maintenance and medical
aid that the Defendant cannot afford.
That, in my view, goes against principles of justice and fairness.
There is also sufficient
evidence before this court on the exact
amount the Defendant will receive. To burden him with an order that
may need variation
later on, will not only be burdening the varying
court unnecessarily, but burdening the Defendant with additional
legal costs which
he must incur, from the same pension fund amount.
[25]
The Plaintiff has been and remains a beneficiary on the Defendant’s
medical aid since 2005.
She seeks an order for her retention thereon
post the Defendant’s retirement as she suffers from Diabetes
and High Blood
pressure and is in chronic medication. During
evidence, when asked what she would do should this court not grant
this order, she
said she would ask her son who is a Medical
Practitioner to help her. The Defendant testified that currently his
employer pays
100% contribution towards his medical aid but post
retirement, he will only be receiving 22% subsidy and the rest must
come from
his pocket. Much as he has kept the Plaintiff as a
beneficiary even after she left the marital home in 2021, he does not
mind keeping
the Plaintiff on until retirement on 31 December 2023,
beyond his retirement however, he would not be able to afford it.
[26]
He explained that he has two options to cashing out his pension
benefits. The first is to take
all the money at once (a 100% cash
out), and the second is to take only one-third and have the rest paid
out to him in monthly
payments. He has not made the election yet but
upon inquiry he was informed by Sanlam that if he chooses the latter
option he will
get approximately R9 000.00 per month whilst Old
Mutual estimated R12 000.00 per month. Looking at the figures,
he will
not be able to make a contribution towards medical aid and
keep the Plaintiff thereon.
[27]
I am of the view that the same test that applies to spousal
maintenance should apply herein.
That the Defendant should have the
ability to pay for the medical aid, both for himself and the
Plaintiff. I will not repeat the
evidence before this court but in
the absence of a subsidy from his employer, the Defendant made it
clear that he would not be
able to afford the medical aid. It follows
therefore that this court cannot burden the Defendant with an order
he cannot afford.
In view of the lumpsum that the Plaintiff stands to
receive from the Defendant’s pension payout and the monies she
has invested
in ABSA and Capitec, I am of the view that she will be
in a position to maintain herself and pay for her own medical aid.
For this
reason, the relief sought by the Plaintiff in respect of
spousal maintenance and medical aid has to fail.
Costs
[28]
The granting and refusal of costs by the courts is governed by two
principles: First
that unless expressly otherwise
enacted, costs fall within the discretion of the court and secondly
that generally, costs follow
the results i.e. they are awarded in
favour of the successful litigant.
Section 10
of the
Divorce
Act however
provides that in a divorce action, a court is not bound
to make an order for costs in favour of a successful party, but
having
regard to the means of the parties and their conduct in so far
as it may be relevant make such order as it considers just, which
may
even be that costs be apportioned between the parties. Having taken
all the evidence before me, I am not persuaded that the
Plaintiff
should be awarded costs of suit as prayed for.
Consequently,
I make the following
Order
:
1. The
decree of divorce is granted and the marriage is dissolved.
2.
Division of the joint estate.
3. The
Plaintiff is entitled in terms of
Section 7(8)(a)
of the
Divorce Act,
70 of 1979
, as amended to payment of 25% (twenty-five percent) of the
Defendant’s pension interest in the Provident Fund of the
University
of the Free State with member number / employee number
97915 as calculated on the date of divorce.
4. The
Pension Fund of the University of the Free State must endorse its
records to the effect that the Plaintiff
is entitled to 25%
(twenty-five percent) of the Defendant’s pension interest as at
the date of divorce, and pay to the Plaintiff
her share of the
Defendant’s pension interest as referred to herein within 120
(One Hundred and Twenty) days after having
been informed of how the
amount must be dealt with in accordance with the Plaintiff’s
election.
5. Each
party to pay his / her own costs.
D.P.
MTHIMUNYE
Appearances:
For
the Plaintiff :
Adv I
Macakati
Instructed
by
Phatshoane
Henney Attorneys
Bloemfontein
For
the Respondent:
Adv T
Mogwera
Instructed
by
Fixane
Attorneys
Bloemfontein
[1]
1989 (1) SA 597 (C)
[2]
1983(1) SA 781 (C)
[3]
1983(4)SA 720 (A) at 727 D-F
[4]
(39138/2014) [2016] ZAGPPHC 575 (24 June 2016)