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[2022] ZAMPMBHC 8
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B.H v C.T.M (A54 / 2020) [2022] ZAMPMBHC 8 (18 February 2022)
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THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: A54 / 2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
18
FEBRUARY 2022
In
the matter between:
B[....]
H[....]
APPELLANT
and
C[....]
T[....]
M[....]
RESPONDENT
Delivered:
This judgment was handed down electronically by circulation to
the parties' representatives by email. The date and time for
hand-down
is deemed to be 10H00 on 18 FEBRUARY 2022.
J
U D G M E N T
RATSHIBVUMO
J:
[1]
Introduction.
This
is an appeal against an order made by Mhala Regional Court (court
a
quo
) in a judgment handed down on 22 July 2020. In that judgment,
following a trial in a divorce action, the court
a quo
ordered
that “pension interest held by the defendant under pension
number 96956170 with Government Employees Pension Fund
(the GEPF) for
the period 02 February 2013 till date of divorce, to be paid to the
defendant within 60 (sixty) days from the date
of divorce.” The
Appellant (the Defendant in the court
a quo
) appeals against
the part of order that prescribes the date on which the pension
calculations should commence, being 02 February
2013 (the date found
by the court a quo as the date of the marriage between the parties).
The Appellant contends that the order
should have been that ‘50%
of the pension interest as at the date of divorce should be paid to
the Appellant.’ The
appeal is opposed by the Respondent.
[2]
Background
.
The
Appellant had issued divorce summons against the Respondent at the
Mhala Regional Court. According to the particulars of claim,
she was
in a customary marriage with the Respondent with effect from 02
February 2013. Undisputed evidence led before the court
was that she
and the Respondent had been staying together since 2004 and have two
children; a boy born on 09 May 2009 and a girl
born on 27 May 2013.
She claimed
inter alia
, for an order in terms of sections 7(8)
of Act 70 of 1979 in terms of which the GEPF is ordered to pay an
amount equal to the net
worth of Respondent’s interest before
tax and at the date of divorce to the Appellant within 60 (sixty)
days of the date
of divorce.
[3]
The matter went through the trial because the Respondent disputed
the
existence of a marriage between him and the Appellant. A number of
witnesses were called by the Appellant and the Respondent
after
which, the court
a quo
found that there was indeed a valid
customary marriage between the Appellant and the Respondent. Prior to
handing down the judgment,
the court
a quo
invited the parties
to also address it on the date on which the pension calculations
would commence. The Respondent grabbed the
opportunity to argue that
the pension interest should be calculated from the date of marriage.
The Appellant was opposed to this
as per the heads of arguments
presented before the court.
[4]
The law.
The
authority of the court to order the division of the pension interest
is derived from section 7(7) and 7(8) of the Divorce Act,
no. 70 of
1979 (the Act) which provides,
“
(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.
…
(8) Notwithstanding the
provisions 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 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;
(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 that other party and that
the administrator of the pension
fund furnish proof of such
endorsement to the registrar, in writing, within one 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.”
[5]
In
Ndaba
v Ndaba
[1]
,
the Supreme Court of Appeal (the SCA) had to answer a question on
whether the parties were entitled to each other pension’s
interest where the settlement agreement made an order of court was
silent on the division of the pension. The SCA held the following,
“
it would be
inimical to the scheme and purpose of s 7(7)
(a)
if it only applies if the court granting a divorce makes a
declaration that in the determination of the patrimonial benefits to
which the parties to a divorce action may be entitled, the pension
interest of a party shall be deemed to be part of his or her
assets.
The grant of such a declaration would amount to no more than simply
echoing what s 7(7)
(a)
decrees. For the same reasons it was not necessary for the parties in
this case, to mention in their settlement agreement what
was obvious,
namely that their respective pension interests were part of the joint
assets which they had agreed, would be shared
equally between
them.”
[2]
[6]
The relevance of the above is to demonstrate that the pension
interest
form part of the joint estate when parties are married in
community of property. There was no dispute in respect thereto before
the court
a quo
. There is therefore no doubt that an order
limiting the calculation of the pension interest benefit to a date
much later than the
pension interest started accruing in the pension
fund, deprived the Appellant of a share she otherwise was entitled to
as part
of the joint estate. The question before us is therefore
whether the court
a quo
had the authority to determine the
date of marriage as the date from which the pension interest should
be calculated. In my view,
there are two scenarios through which the
court would have the discretion to make such an order. The first
would be when forfeiture
order is made in terms of section 9 of the
Act and second would be when a court determines the accrual
calculation.
[7]
Section 9 of the Act provides,
“
9.
Forfeiture of patrimonial benefits of marriage.
—
(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 for forfeiture is not made, the one party will
in
relation to the other be unduly benefited.”
[8]
In the
heads of argument, the Respondent conceded that the only source of
authority the court
a
quo
could have used in making the order as it did, would be would be the
above section. This section that empowers a court to order
forfeiture
of benefits. The Respondent argued though, that the court’s
discretion should be exercised judiciously as was
done by the court
a
quo
.
While section 9 above empowers a court to make a forfeiture order
(which it ultimately did without using those specific words),
that
was not the case pleaded before the court. In other words, the
Respondent did not claim forfeiture of benefits against the
Appellant. The case before the court was whether there was a
customary marriage between the parties. If the court was to find that
there was such a marriage, it would mean that they were married in
community of property.
[3]
[9]
The
argument that the court
a
quo
exercised its discretion judiciously cannot stand in the
circumstances were such an order is granted without any consideration
of factors that the Act provides that they should be considered.
These would be ‘
the
duration of the marriage, the circumstances which gave rise to the
break-down and any substantial misconduct on the part of
either of
the parties,’ These factors were not placed before the court as
none of the litigants asked for the forfeiture
of benefits order.
To make an order for forfeiture of benefits where none is asked for
would be a misdirection, entitling the court of appeal to interfere.
Without any misdirection on the part of the trial court, the court of
appeal is not entitled to interfere with its findings.
[4]
[10]
The
question about the date from which the pension interest should be
calculated was raised for the first time by the presiding
officer
when the parties’ legal representatives were making closing
arguments. Prior to it being raised as such, it was not
pleaded by
any of the parties. As indicated above, the wording of the order by
the court
a
quo
,
resembles what one would have expected as an order in marriage out of
community of property in which the accrual system applies,
in that it
is the only legal provision from which a calculation of any
contribution into one’s estate is calculated from
the date of
marriage.
[5]
[11]
I am therefore satisfied that there is no legal basis upon which the
court ordered
that the pension interest be calculated from the date
of marriage. I am also satisfied that in so doing, the Appellant was
denied
a fair share of what she is entitled to benefit as she was
married in community of property.
[12]
For these reasons, I would propose the following order:
[12.1] Appeal is upheld
with costs.
[12.2] Paragraph 4 of the
order of the court
a quo
is set aside and replaced with the
following:
[12.3] Pension interest
held by the Defendant under pension no. 96956170 with the Government
Employees Pension Fund, calculated
up to the date of divorce to be
paid to the Plaintiff.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered.
MF
LEGODI
JUDGE
PRESIDENT
MPUMALANGA
DIVISION OF THE HIGH COURT
FOR
THE APPELLANT:
: MS. S THOBELA
INSTRUCTED
BY
: THOBELA SINDY ATTORNEYS
: NELSPRUIT
FOR
THE RESPONDENT
: NO APPEARANCE
DATE
HEARD
: 28 JANUARY 2022
JUDGMENT
DELIVERED
:
18 FEBRUARY 2022
[1]
2017 (1) SA 342
(SCA) para 25.
[2]
See also
CM
v EM
2020 (5) SA 49
(SCA) which confirms the principle that pensions
interest forms part of the joint estate in marriages in community of
property.
[3]
See
section 7(2)
of the
Recognition of Customary Marriages Act, no.
120 of 1998
which provides,
“
(2)
A customary marriage entered into after the commencement of this Act
in which a spouse is not a partner in any other existing
customary
marriage, is a marriage in community of property and of profit and
loss between the spouses, unless such consequences
are specifically
excluded by the spouses in an antenuptial contract which regulates
the matrimonial property system of their
marriage.” This Act
came into operation on 15 November 2000.
[4]
See
Minister
of Safety and Security and Others v Graig and Another NNO
2011 (1) SACR 469 (SCA).
[5]
See section 4 of the Matrimonial Property Act which provides,
“
4.
Accrual of estate
.—(1) (
a
) The accrual of the
estate of a spouse is the amount by which the net value of his
estate at the dissolution of his marriage
exceeds the net value of
his estate
at the commencement of that marriage
.”