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[2023] ZAKZPHC 43
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N.P.M v M.H.M (3204/2021P) [2023] ZAKZPHC 43 (21 April 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:
PENSION AND DATE OF CALCULATION
FAMILY
– Divorce – Pension – Marriage in community of
property – Parties separating and living apart
for several
years before divorce – Defendant entitled to 50 % of
plaintiff’s pension benefit as at date of divorce
– It
is not to be calculated from the date of separation as contended
by plaintiff – Pension payout received
by defendant while
marriage subsisted forms part of joint estate.
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
3204/2021P
In the matter between:
N[....] P[....]
M[....]1
PLAINTIFF
And
M[....] H[....]
M[....]2
DEFENDANT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
The matter was set down on the trial roll on 22 March 2023. The
parties had however prepared a stated
case and also heads of
argument. It was contended that the matter, as it was crowded out,
could be dealt with on the papers with
the heads of argument as there
is a stated case and it is a point of law which needs to be decided.
The matter is therefore dealt
with accordingly.
[2]
The stated case in terms of Rule 33 appears at page 35 to 41 of the
indexed papers. It sets out there
would be no oral evidence and that
heads of argument would be filed.
[3]
The facts are that Plaintiff and Defendant were married to each other
on 4 September 1993 in community
of property. From the marriage
certificate at page 27 of the index papers it appears that Defendant
was born during 1966 and Plaintiff
during 1969. The parties separated
during December 2004 and seized living together as husband and wife
from then. Thereafter Plaintiff
had an extra marital child. Both
parties agreed that the marriage has broken down.
[4]
There are two homes and Plaintiff and Defendant each reside in one of
these homes. Plaintiff is a member
of the Government Employee Pension
Fund and Defendant was employed by NAMPAK but was retrenched on 31
January 2016 and then received
an amount of R 609 455.14. In terms of
the common cause facts the greater portion was used to build the
house in which he is residing.
The parties intend that each party
will retain the home in which they are presently residing.
[5]
The question of law in dispute is in terms of what is set out in the
summary of facts at page 38 of
the indexed papers whether Plaintiff
is entitled to 50 % of the pension benefit paid to Defendant upon his
retrenchment and secondly
whether Defendant is entitled to 50 % of
Plaintiff’s pension interest with the Government Employees
Pension Fund up to date
of divorce.
[6]
In the particulars of claim Plaintiff sought forfeiture of benefits
and the heads of argument deal mainly
with this issue. However in the
summary of facts it is set out that Plaintiff no longer seeks
forfeiture of the patrimonial benefits
but contends that she is
entitled to 50 % of the pension interest of Defendant and that he is
entitled to 50 % of her pension interest
but only up to the date on
which they separated. Defendant contends that although they may have
separated during December 2004
he is entitled to 50 % of Plaintiff’s
pension interest up to the date of the divorce. The amount that was
received from NAMPAK
accrued to the joint estate and was used for
building the house in which he resides.
[7]
As the stated case sets out the issue which has to be decided in
paragraphs 13 and 14 which I have referred
to above it is no longer
necessary to deal with the issue of forfeiture.
[8]
The first issue is whether Plaintiff is entitled to 50 % of the
payment that Defendant received on retrenchment
during 2016. It is
common cause that at that stage they were still married and the
marriage in actual fact still subsists up till
today. Accordingly the
amount that Defendant received on his retrenchment formed part of the
joint estate of the parties.
[9]
In Ndaba v Ndaba
2017 (1) All SA 33
(SCA) it was held at paragraph
26:
“
The
language of section 7(7)(a) of (referring to the
Pension Funds Act 24
of 1956
) is clear and unequivocal. It vests in the joint estate the
pension interest of the members spouse for the purposes of
determining
the matrimonial benefits, to which the parties are
entitled as at date of their divorce. Most significantly, the
Legislatures choice
of the word ‘shall’ coupled with the
word ‘deemed’ in
section 7(7)(a)
is indicative of a
peremptory nature of the provision. The section creates a fiction
that a pension interest of a party becomes
an integral part of a
joint estate upon divorce which is to be shared between the parties.
Van Niekerk puts if thus:
‘
Where
the parties are married in community of property, the value of the
pension interest is added to the value of the other assets
that fall
in the joint estate for purposes of the division of the estate.’
[10]
Therefore the amount which was received by Defendant in 2016 when he
was retrenched forms part of the joint estate
of the parties as the
marriage still subsisted at that time. As appears from what is set
out above and which the Supreme Court
of Appeal has ruled on it forms
part of the joint estate and must be taken into account in the
calculation of the value of the
joint estate. As the amount has
already been paid Plaintiff would be entitled to 50 % thereof but for
practical reasons it will
be taken together with all the assets in
determining what the value of the estate is which is then to be
divided equally.
[11] The
further question is whether Defendant is entitled to 50 % of
Plaintiff’s pension interest as at date
of divorce. In the case
of Ndaba it was held in paragraph 27:
“
Section
7(8)
, on the other hand, creates a mechanism in terms of which the
pension fund of the members spouse is statutorily bound to effect
payment of the portion of the pension interest (as at the date of
divorce) directly to the non-member spouse as provided for in
section
37
D(1)(d)(i) of the Pension Fund Act 24 of 1956 and section 21(1) of
the Government Pension Law 1996.”
[12] In Katz
v Katz 1989 (3) SA p 1 (AD) it was held at 6G – I dealing with
the issue of redistribution and also
maintenance:
“
There
is nothing to indicate that the legislature had in mind any date
other than the date of the Court’s order and, indeed
if
original contention of the appellant were to succeed it could give
rise to highly anomalous consequences.”
This was referred to and
accepted in RP v RP
2016 (4) SA 226
(KZD) at paragraph 55 where it
was held as follows:
“
However
in Katz Milne J.A. accepted the trial courts finding in respect of
the value of the net assets of the appellant at the date
of
conclusion of the trial and in rejecting the submission on behalf of
the appellant that the parties’ assets should be
determined as
at date of separation.”
In Government Employees
Pension Fund v Naidoo & Another
2006 (6) SA 304
(SCA) it was held
at 307H as follows:
“
Prior
to the divorce the benefits accrued to the joint estate. It is the
only asset in the joint estate. Mrs Naidoo accordingly
required an
undivided half share in the benefit. On divorce she became entitled
to her half share. That is what she claims. In
my view such a claim
is not precluded by the section.”
In the head note of the
said decision it sums it up as follows referring to persons married
in community of property:
“
Upon
divorce a non-member spouse becomes entitled to payment of his or her
half share of the benefit and the latter claim is not
precluded by
the provisions of section 21(1) of the Government Employees Pension
Bill 1996.”
[13] From
what has been set out above it is therefore apparent that Defendant
is entitled to 50 % of Plaintiff’s
pension benefit as at date
of divorce. It is not to be calculated from the date of separation
but that he is entitled to it when
it is calculated at the date of
divorce.
[14] The
matter must be set down for hearing on the unopposed divorce roll if
the parties agree to what has been concluded
herein.
[15] The
issues which had to be decided in terms of the stated case are
accordingly as follows:
1. The
retrenchment payment received by Defendant when he was retrenched on
31 January 2016 forms parts of the
joint estate and must be taken
into consideration in determining the value of the joint estate.
2.
Defendant is entitled to 50 % of the pension benefit of Plaintiff
with the Government Employees Pension Fund
and is to be calculated as
at date of divorce.
P C BEZUIDENHOT J.
JUDGMENT RESERVED
ON:
22 MARCH 2023
JUDGMENT HANDED DOWN
ON:
21 APRIL 2023
COUNSEL
FOR PLAINTIFF:
B
B DEBEER
Instructed
by:
W
A Mpanza Incorporated
Durban
Ref:
Mpanza/D/Ntombikayise
Petuna
Mlungu/2021
Tel:
083 336 7096
c/o:
Fakude & Associates
Pietermaritzburg
COUNSEL
FOR DEFENDANT:
N
PHAMBUKA
Instructed
by:
Wendy
Cele & Associates
Durban
Ref:
WCA/CVL/059
Tel:
031 944 4625/ 071 055
c/o:
Myende Attorneys
Pietermaritzburg