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[2018] ZAFSHC 133
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T v B (2113/2012) [2018] ZAFSHC 133 (17 September 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
2113/2012
In
the matter between
:
B
T
Applicant
and
L
B
Respondent
JUDGMENT
CORAM:
NULLIAH AJ
HEARD
ON:
21 FEBRUARY 2018
DELIVERED
ON:
17
SEPTEMBER
2018
I
INTRODUCTION
AND BACKGROUND
[1]
This is an application to amend a court order that granted a final
decree of divorce dissolving the bonds of marriage between
the
parties absent any division of the joint estate.
[2]
The parties were married to each other in community of property on
the 24 September 2008. In May 2012, the respondent
personally
instituted divorce proceedings against the applicant and issued
summons against her. The applicant was served
with the summons
on 28 May 2012. Embodied in the summons included prayers for a
decree of divorce and further and alternative
relief. The
summons was absent any claim for forfeiture of benefits in terms of
section 9(1)
of the
Divorce Act 70 of 1979
.
[3]
A notice of set down was subsequently filed by the respondent on the
28 June 2012 to enrol the matter for hearing on the 5 July
2012 on an
unopposed basis.
[4]
On the 5 July 2012, Legal Aid South Africa filed a notice of
intention to defend on behalf of the applicant. Notwithstanding
her
instruction to Legal Aid, the applicant subsequently instructed a
private attorney and filed another notice of intention to
defend on
31 July 2012. Both notices of intention to defend were sent by
registered post to the address of the respondent
who was not legally
represented. No notice of bar was filed by or on behalf of the
respondent in terms of Rule 26 of the Uniform
Rules of Court.
[5]
In addition to filing the notice of intention to defend on the 5 July
2012, Legal Aid also appeared before court on behalf of
the applicant
who was not in attendance and the matter was subsequently postponed
to 2 August 2012. According to the papers filed
of record, a letter
was issued by the Legal Aid attorney informing the applicant that the
matter had been postponed to 2 August
2012. The file is absent
any confirmation that the applicant received such notice.
[6]
A final decree of divorce was granted by default on the 2 August 2012
merely dissolving the bonds of marriage between the parties
and is
silent on the division of the joint estate.
[7]
The application has as its premise the procedural and substantive
unfairness of the divorce order granted by default on the
2 August
2012.
[8] The applicant now
seeks an amendment with a view to supplementing the existing order
which is silent on the division of the
joint estate with an order
that includes the division of the joint estate as
per
their
marital regime coupled with an award for half of the respondent’s
pension interest as at the date of divorce.
II
APPLICANT’S
VERSION
[9]
It is the applicant’s contention that the final decree of
divorce granted by default was both procedurally and substantively
unfair and should never have been granted. The applicant
contended that from the onset, she was intent on defending the
divorce and accordingly instructed Legal Aid South Africa. Her
legal aid attorney, Mrs Oosthuizen, filed a notice of intention
to
defend on 5 July 2012, prior to the date of divorce being granted and
it is alleged that the respondent was aware of the filing
of this
notice. Notwithstanding Legal Aid being assigned to her initially,
due to her lack of trust in her legal aid attorney coupled
with the
dissatisfactory service she received from her, the applicant
appointed a private attorney additionally to defend the action
on her
behalf. Hence, a second notice of intention to defend was filed
on 31 July 2012.
[10]
Notwithstanding the filing of two notices of intention to defend, a
final decree of divorce was granted in the applicant’s
absence,
dissolving the marriage between the parties on the 2 August 2012.
The applicant contended that the divorce order
granted by default was
procedurally unfair in that the respondent had failed to comply with
the Uniform Rules of Court by failing
to file a notice of bar after
the notice of intention to defend was lodged. It was further unfair
in that the applicant was not
afforded the opportunity to be heard by
court nor the opportunity to lodge a counterclaim against the
respondent. According
to the applicant, she was not informed of
the date of the divorce.
[11] It is also
substantively unfair in that the current order is silent on the
division of the joint estate and the applicant’s
share to half
of the respondent’s pension interest as at the date of
divorce. The applicant contended that the resultant
effect of
the order granted on the 2 August 2012 is that it amounts to her
forfeiting her claim to the division of the joint estate
and her half
share of the respondent’s pension’s interest. She further
contended that the respondent was a member of
the Transport Pension
Fund during the subsistence of the marriage until after the final
decree of divorce was granted and that
his pension interest falls
within the joint estate in terms of
section 7(7)
of the
Divorce Act
70 of 1979
.
[12]
The applicant denied that a meeting was held between herself, the
respondent and Mrs Oosthuizen or that any agreement had been
reached
between them. She argued in her replying affidavit that if the
matter had indeed been settled, it would have been
reduced to writing
and the divorce order would have incorporated the alleged settlement
into the court order. The divorce order
granted on the 2 August 2012
makes no mention made of such settlement, verbal or otherwise.
She contended that these allegations
merely constitute an attempt to
defeat the division of the estate.
[13]
The applicant further denied that she had reneged on their
arrangement to secure a property and live together once the marriage
was concluded. To the contrary, she contended that the
respondent promised to obtain a house for them to live in but he
failed to do so. She resided with the respondent at his house
for a period of two months but she was unable to endure the
constant
fighting with his children. She further denied ever being in
possession of immoveable property and that the respondent
was aware
that the property on which she lived fell within the estate of her
late grandmother who had died intestate and was survived
by three
children, one of whom was the applicant’s mother and that she
herself is one amongst three children. She further
denied that
the marriage was never consummated and contended that she and the
respondent were sexually intimate prior to and after
the conclusion
of the marriage. She contended that she and the respondent lived
together for a period of eight years, approximately
four of which
were prior to the marriage.
[14]
The applicant contended that she is 54 years old, unemployed and a
layperson in terms of the law. She was at the mercy of attorneys
that
were clearly derelict in their obligations towards her and in
consequence, an order by default was granted against her.
Notwithstanding,
she lodged a complaint and was assigned another
Legal Aid attorney whom she also found to be unsatisfactory. With the
assignment
of third Legal Aid Attorney, she now seeks relief in the
form of an amendment of the decree of divorce granted on 2 August
2012
with an insertion entitling her to a division of the joint
estate and half of the pension interest of the respondent as at the
date of divorce. She ascribed the lateness of the present
application to the delinquent service she received from her previous
legal aid attorneys as well as the private attorney she instructed
and accordingly requests condonation. Notwithstanding her concerted
efforts and numerous attempts to secure proper legal assistance, she
was unsuccessful and thus the lateness of bring this application
cannot in all fairness be imputed to her. She further contended
that the prejudice suffered by the respondent in the lateness
of
bringing of this application is outweighed by the prejudice she has
endured in consequence of the order granted on 2 August
2012.
[15] Mrs De Wet, on
behalf of the applicant argued that it is the practice of this
division to require the filing of a notice of
withdrawal of defence
by the defendant in a settled divorce action prior to the setting
down of the said divorce on the unopposed
roll. The court did
not reflect the filing of such a notice either. She further argued
that notwithstanding two notices of
intention to defend reflecting in
the court file, the failure to file a notice of bar and the absence
of a written deed of settlement
or tangible evidence that a verbal
agreement had been concluded between the parties, an order was
granted in the absence of the
applicant.
[16]
Ms De Wet further contended that the granting of a divorce order is a
matter of public policy
[1]
and
that it is contrary to public policy for one party to obtain an order
which has the effect of a forfeiture against the other
party who was
never barred, who was not afforded an opportunity to file her claims
or be heard in the matter. Hence, the present
application seeking an
amendment of the current court order granting a decree of divorce
which effectively amounts to a forfeiture
without grounds therefore
should be granted in
lieu
whereof
justice would fail the applicant.
III
RESPONDENT’S
VERSION
[17]
It is the respondent’s contention that the marriage between
himself and the applicant was concluded on the premise that
the
various immoveable properties owned individually by them would be
occupied by their children from previous marriages and that
he and
the applicant would proceed to find a new property on which to stay
together. Notwithstanding this arrangement, and
directly after
the conclusion of the marriage, the applicant expected the respondent
to vacate his property and reside with her
on her property. This new
arrangement was unacceptable to him and upon realising that there was
no longer any purpose in remaining
married to the applicant, he
issued summons for a decree of divorce.
[18]
According to the respondent, the matter was not originally opposed
and was therefore enrolled before court on an unopposed
basis.
He maintained that when the matter was enrolled for the first time,
the applicant was absent but her legal aid representative
was in
attendance and Judge Moloi who was presiding over the matter enquired
as to whether the disputes between the parties could
not be
resolved. A postponement was granted for that purpose.
With a view to resolving the matter, the respondent subsequently
approached the offices of the applicant’s attorney at Legal Aid
South Africa. The respondent was also requested to
attend the
office of her legal representative and they settled that the decree
of divorce could be granted on the basis that each
party would retain
what they currently had in their possession. The matter was again
heard by Judge Moloi who was informed that
the matter had been
settled on that basis and that merely an order for a decree of
divorce could be granted. The respondent
contended that the
court was satisfied that the matter was settled with little costs
involved and in those circumstances, the court
order was granted.
[19]
The respondent that given the fact that at some stage the applicant
was legally represented, it is both inconceivable and improbable
that
the presiding judge in those circumstances would have ignored the
applicant’s defence and granted an order of divorce.
He
contended that a settlement agreement had indeed been concluded and
in those circumstances, the court was content to grant merely
the
decree of divorce. He further contended that notwithstanding the
settlement agreement not being made an order of court, the
agreement
at least is enforceable between the parties. In those circumstances
and in the absence of a proper case being made for
the relief sought,
he opposes the application for amendment and requests that the
application be dismissed with costs.
[20]
The applicant further moved for an order condoning the late filing of
its application in addition to an order varying the final
decree of
divorce granted on the 2 August 2012 to realise her alleged share of
the joint estate. He contended that he was prejudiced
by the filing
of this application and opposed the application for condonation and
amendment. The present application comes approximately
five years
after the divorce order being granted and he has been unable to
obtain the court file or a transcription of the record
of
proceedings. He further argued that no proper explanation was
furnished by the applicant as to lodging this application after
the
lapse of five years and that the application should be dismissed for
that reason alone. The respondent also revealed
that he is no
longer employed by Transnet. He retired on the 1 January 2016 and
there is pension interest in the Transport Pension
Fund that can be
attached. He denied that he and the applicant ever stayed together
after the marriage or consummated it. He further
denied the
allegations of an extra marital affair. Rather, he argued that the
reason for the launching of the is application is
based on the
applicant’s need for money.
[21]
Advocate Reinders, on behalf of the respondent contended that once a
court has duly pronounced a final judgment or order, it
has itself no
authority to correct, alter or supplement it as it has become
functus
officio.
He
further contended that while an application for rescission of a
judgment can either be brought under
Rule 42
,
Rule 31(2)(b)
or the
common law, the applicant does not rely on the provisions of
Rule 31
to obtain a rescission of the order. He further argued that the
applicant is not applying for a rescission of the order but
merely
for an amendment and thus insertion of certain orders. He however,
argued that the purpose of
Rule 42
is to correct expeditiously an
‘obviously wrong judgment or order’. While he
accepted that what is considered
a reasonable time within which to
bring such an application depends on the facts of each case, given
the unreasonable lapse of
five years, the applicant should be
precluded from complaining and that the application for condonation
be dismissed.
[22] This is in summary
the background against which this application must be determined.
The
following appears to be common cause between the parties
:
1.
The parties were
married in community of property on the 24 September 2008.
2.
The summons issued
instituting divorce proceedings is absent any claim by the respondent
for forfeiture of benefits.
3.
No notice of bar was
filed by the respondent.
4.
A final decree of
divorce was granted by default dissolving the bonds of marriage
between the applicant and the respondent on 2
August 2012.
5.
The court order is
silent on the division of the joint estate.
6.
The joint estate as it
existed at the date of divorce has never been divided.
7.
The court order does
not make mention of a deed of settlement, verbal or otherwise nor is
there a written or signed deed of settlement
that was incorporated in
the order.
8.
The respondent was a
member of the Transport Pension Fund during the subsistence of the
marriage until after the final decree of
divorce was granted and that
such pension interest falls within the joint estate.
The
following appears to be in dispute between the parties
:
1.
That the parties
concluded a verbal settlement agreement to the effect that each party
would retain what was currently in their
possession in consequence of
which the divorce order dated 2 August 2012 was granted.
2.
That the applicant has
a right to institute a claim for the division of the joint estate for
half of the respondent’s pension
interest in terms of
section 7
of the
Divorce Act 70 of 1979
pursuant to the decree of divorce being
granted.
IV
ISSUE
[23] The issue for
determination is not whether this court is competent or empowered to
vary an existing divorce order but whether
it is open to it to vary
the existing divorce order by supplementing it with the
division of the joint estate long after
the dissolution of the
marriage when no such order was included by the court granting the
decree of divorce.
V
APPLICABLE
LAW
[24]
It is considered prudent to sketch the legal background against which
the case falls to be decided. Both the
Divorce Act 70 of 1979
and
Rule 42 of the Uniform Rules of Court have application.
[2]
Rule
42(1)(b) provides that the court may rescind or vary any order or
judgment in which there is an ambiguity, or a patent error
or
omission, but only to the extent of such ambiguity, error or
omission.
[3]
A patent error or
omission has been described as ‘an error or omission as a
result of which the judgment granted does not
reflect the intention
of the judicial officer pronouncing it, in other words, the ambiguous
language or the patent error or the
omission must be attributable to
the court itself’. The court is thus not entitled to
revisit the whole of its order
or judgment and its competence is
limited to the interpretation of the order. This subsection
effectively confines the powers of
this court to the exclusion of the
ambiguity, error or omission.
[25]
It is well established in our law that ‘once a court has duly
pronounced a final judgment or order, it has itself no
authority to
correct, alter or supplement it - it becomes
functus
officio
:
its jurisdiction in the case having been fully and finally exercised,
its authority over the subject matter has ceased’.
[4]
Other
than in the circumstances specifically provided for in the Uniform
Rules of Court or the common law,
prima
facie
the
inherent jurisdiction of the High Court patently does not extend to
interference with a judgment once it is finalised.
[26]
Notwithstanding the general rule, our highest courts have also
recognised a number of exceptions to the general rule which
are not
all inclusive and may be extended to meet the constraints of the
particular case.
[5]
These
courts weighed up the principle of finality of judgments against what
is just, equitable and sound in law. These exceptions
include:
(a)
Supplementing of
judgment: the principal judgment or order may be supplemented
in respect of accessory or consequential matters,
for example costs
or interest on the judgment debt, which the court overlooked or
inadvertently omitted to grant;
(b)
Clarification of
judgment: the court may clarify its judgment or order if, on a proper
interpretation, the meaning thereof remains
obscure, ambiguous or
otherwise uncertain, so as to give effect to its true intention,
provided it does not thereby alter the ‘sense
and substance’
of the judgment or order.
[27]
It becomes patent that an order of the High Court could be interfered
with under Rule 42 and the common law other than on appeal
in that it
effectively permits a judicial officer to amend, supplement or
clarify
[6]
its pronounced
judgment, provided that the ‘sense or substance’ of the
judgment is not affected or altered thereby.
It is also patent
that Rule 42 has as its purpose the expeditious correction of ‘an
obviously wrong judgment or order’.
It is accepted that
provided the court is approached within a reasonable time of its
pronouncing the judgment or order, it may
correct, alter or
supplement it on one or more of the following cases. However, the
period within which to bring such an application
is not regulated by
the Rules of Court.
[7]
Off
course, what constitutes a reasonable time depends on the facts
peculiar to the case.
[28]
It is putative that ‘a marriage concluded in the absence of an
ante nuptial contract providing otherwise, creates community
of
property and profit and loss. The basic concept of a marriage
in community of property is “
a
universal economic partnership of the spouses
”
.
All their assets and liabilities are merged in a joint estate in
which both spouses, irrespective of the value of their
financial
contributions hold equal shares. All assets that belonged to
the spouse before the marriage and those acquired
by them during the
marriage, form part of the joint estate unless specifically
excluded.’
[8]
[29]
Section 7(7)
(a) of the
Divorce Act addresses
the issue of whether a
non-member spouse in a marriage in community of property, is entitled
to the pension interest of member
spouse in circumstances where the
court granting the decree of divorce did not make an order declaring
such pension fund to be
part of the joint estate. It states that 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.
[9]
[30] The purpose of
section 7(7)(a)
was articulated in
Wiese v Government Employees
Pension Fund and Others
{2012} ZACC 5; 2012(6) BCLR 599(CC)
para5-9
,
where the Constitutional Court in dealing with the
history and object of the amendment analysed the legislative
enactment that
had preceded it and pointed out that:
During
1989,
section 7(7)(a)
was added by the Divorce Amendment Act to deal
with certain problems. Under the
Divorce Act, non-member
spouses
were, in certain circumstances, entitled to payment of part
of the pension interest due, or assigned to, the member of the
Government
Pension Fund when any pension benefit accrued to that
member. A pension interest which had not yet accrued was not
considered
an asset in the spouse’s estate. To cure this
defect, the amendment, provided that a pension interest is deemed to
be an asset in the state for the purpose of determining patrimonial
benefits.
[31]
Thus, as regards the entitlement of a non-member spouse under
section
7(7)(a)
and
section 7(8)(a)
of the
Divorce Act 70 of 1979
, the
pension interest of the member spouse of parties married in community
of property as at date of divorce is by operation of
law part of the
joint estate for the purpose of determining the parties patrimonial
benefits and no order is required in terms
of section.
[10]
Hence, when the joint estate of spouses married in community of
property is to be divided, it is thus proper to take into account,
as
an asset in the joint estate, the value of a pension interest held by
one or either of them as at the date of the divorce. This
brings the
process of giving effect an order for a division of the estate
squarely within the ambit of the legislation.
[32]
It is therefore follows that where parties who were married to each
other in community of property and who in subsequent divorce
proceedings did not deal with a pension or provident fund interest
which either or both of them may have either by way of settlement
or
by forfeiture, their proprietary rights do not cease and remain
intact and each of them nonetheless remain entitled to a share
in the
pension or provident fund to which the other spouse belonged to and
such share is to be determined as at the date of the
divorce by
virtue of the provision of
section 7(7)(a)
of the
Divorce Act 70 of
1979
[11]
.
[33]
It is also putative that forfeiture of the patrimonial benefits of
marriage benefits in community of property may only be ordered
where
the requirements of
section 9(1)
of the
Divorce Act 70 of 1979
is
met.
[12]
It is accepted that
order for forfeiture may not be claimed by way of application.
It is also accepted that an order for
forfeiture may only be granted
after oral evidence has been adduced by the party claiming
forfeiture.
[13]
It is also
established law that a party only becomes entitled to a claim for
forfeiture once the nature and the extent of the benefit
has been
identified and proven before a court can decide that the party
against whom the claim for forfeiture lies will be unduly
benefitted
should the order for forfeiture not be granted.
[14]
VI
ANALYSIS OF
LAW AND THE FACT
[34]
The divorce action between the parties started approximately six
years ago in 2012. On the papers before me, the applicant
ascribed the unreasonable delay in the finalisation of the issues to
the dilatory conduct of the attorneys in the handling of her
matter.
Towards that end, the application for condonation of the late filing
of the application in both her founding affidavit
and the notice of
motion. It is also correct that the period within which to bring an
application for an amendment is not regulated
by the Rules of Court.
[35]
It is noteworthy that inasmuch as the applicant avers procedural
unfairness, she does not oppose the order granting the decree
of
divorce itself. Her application circuits around the divorce order
being absent of the invariable consequences of dissolving
a marriage
in community of property. I therefore do not consider it
expedient to address the aspect of procedural unfairness
that
culminated in the granting of the divorce order and the launching of
the present application given the disputed allegations
and the
conspicuous absence of tangible evidence to sustain such
allegations. It is therefore becomes unnecessary to consider
the application for condonation. I am also hesitant to comment or
entertain the alleged unconscionable conduct
[15]
of the respondent in attempting to avoid the division of the estate.
Needless to say, there is no convincing evidence before
court to
buttress such an allegation. In the circumstances, I am content to
confine myself to the substantive unfairness of the
order granted.
[36]
In terms of
section 7(1)
of the
Divorce Act, a
deed of settlement has
to be in writing. The respondent was unable to produce any
written agreement between the parties and
the respondent’s
contention that a verbal settlement agreement had been concluded is
disputed. There exists no evidence to
that effect either in the form
of a witness or a record of proceedings from court. There is no
evidence in the form of correspondence
with regard to settlement
negotiations nor was such alleged settlement agreement made a part of
the divorce order.
[37]
It is correct that the effect of the order granted on the 2 August
2012 effectively places the applicant in a position as if
a
forfeiture order had been granted against her. The evidence
establishes no claim for forfeiture at the time of divorce
and it is
therefore not necessary to proceed to determine whether the
requirements have been met.
[38]
It is putative that one of the invariable consequences of a marriage
in community of property is that the spouses become co-owners
in
undivided and indivisible half shares of all the assets acquired
during the subsistence of their marriage. And absent
a
forfeiture of benefits under
section 9(1)
of the Act or an express
agreement between the parties to the contrary, each spouse is
entitled to a half share of the joint estate
– whatever it
entails. It is also putative that the pension interest of a member
spouse as at the date of divorce is by operation
of law part of the
joint estate for the purpose of determining the parties’
patrimonial benefits and that no order is required
in terms of
section 7(7)(a)
of the
Divorce Act 70 of 1979
.
[39]
Regarding the patrimonial system governing the parties marriage,
where parties are married in community of property the law
requires
that such joint estate be divided when the marriage is dissolved. The
present order is absent any division of the joint
estate. It is
indeed correct as advanced by the applicant that ‘the courts
are required to exercise judicial oversight with
regards to divorce
proceedings and this oversight is necessary to ensure that marriages
are dissolved in accordance with sound
legal principles and that the
law pertaining to the patrimonial consequences of the divorce is
properly applied and adhered to.’
It is indeed untenable that
an order granted in a divorce merely dissolves the bonds of marriage
absent any division of the joint
estate.
[40]
It is incumbent upon this court to exercise its supervisory
jurisdiction in relation to the division of the joint estate in
the
absence of an agreement between the parties. The present divorce
order as it stands does not define the right of the applicant
and
effectively contextualises the ramifications of the granting a decree
of divorce absent any division of the joint estate.
Division of
the joint estate is an automatic and an invariable consequence of a
marriage in community of property and automatically
ensues where an
order of divorce is granted and nothing else is asked for. The
supplementing of the existing order with the division
of the joint
estate merely echoes the invariable consequence of a marriage in
community of property, namely division in equal measure
inclusive of
half of the pension interest of the respondent. The applicant is thus
entitled to supplement the decree of divorce
so as to include an
order for the division of the joint estate.
[41] It is correct that
five years has lapsed since the granting of the decree of divorce.
It is also correct that the respondent
has since retired and received
his pension. Given the time lapse, the ramifications of bringing the
application at such a late
stage must off course be borne by the
applicant. This then leaves the question of costs. Notwithstanding
that the applicant has
achieved substantial success, it is deemed
apposite in the circumstances that each party pay their own costs.
VII
ORDER
1.
In the result, it is
ordered that the order granting the decree of divorce on the 2 August
2012 be supplemented to include the following:
1.1 Division of the joint
estate equally between the parties.
1.2 The plaintiff is
entitled to 50% of the defendant’s pension interest calculated
as at the date of divorce.
1.3 Each party is to pay
their own costs.
_________________
NULLIAH,
AJ
On behalf of the
applicant: IL De Wet
Instructed
by Bloemfontein Justice Centre
On behalf of the
respondent : Advocate Reinders
Instructed
by PT Giorgi
Giorgi
and Gerber Attorneys Inc
[1]
Ex
Parte Inkley and Inkley
[1995] 2 All SA 101
(C); Kuhn v Karp 1948(4)
SA 825 (T) at 840 – 841, Carter V Carter 1953(1) SA 202 (A) at
205B, Daniels v Daniels: McKay
v McKay 1958(1) SA 513 (A) at 532A
and Belfort v Belfort 1961(1) SA 257(A) at 259H.
[2]
Rule
42 of the Uniform Rules of Court Superior Court Practice Volume 2
(1)
The
court may, in addition to any other powers it may have, mero motu or
upon the application of any party affected, rescind or
vary:
(a)
An
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b)
An
order or judgment in which there is ambiguity, or a patent error or
omission;
(c)
An
order or judgment granted as a result of a mistake common to both
parties.
[3]
Rule
42(1)(b) of the Uniform Rules of Court.
[4]
De
Wet v Western Bank Ltd
1977 (4) SA 770(t)
at 780H-781A.
[5]
Zondi
v MEC, Traditional and Local Government Affairs
2006 (3) SA 1
(CC)
at 12 H-13A.
[6]
Firestone
South Africa (Pty) Ltd v Gentivuro Ag
1977 (4) SA 298
(A) .
[7]
Rule
42 of the Uniform Rules of Court.
[8]
See
MR v JR
[2015] JOL 34218
(GNP). The court was faced with
deciding whether to grant forfeiture of pension benefit. The
court found that an
order for forfeiture could not be granted as
there was no misconduct by the party against whom the order was
sought. No claim
for forfeiture with the allegation of substantial
misconduct.
[9]
Divorce
Act 70 of 1979
.
[10]
See
also
Ndaba
v Ndaba (600/2015)
[2016} ZASCA 162
(4 November 2016)
[11]
In
Kotze
v Kotze and Another
[2013]
JOL 30037
(WCC
)
it was concluded that where the parties married in community of
property do not deal with a pension or provident fund interest
of
either of them during divorce proceedings, they each still remain
entitled to a share in the pension or provident fund to
which the
other spouse belonged. In terms of
section 7(7)(a)
of the
Divorce Act 70 of 1979
, such share is to be determined as at the
date of divorce. In
Motsetse
v Motsetse
[2015]
2 All SA 495
(FB) Jordaan J found that the proprietary rights of
parties to a divorce action do not cease upon the termination of the
marriage.
See at para 15 on page 499 : The legal effect is
clear namely that each of the parties is entitle to half of the
joint estate.
In the determination of benefits, the pension
interest of the parties shall be deemed to be part of the assets.
[12]
Section
9(1)
of the
Divorce Act 70 of 1979
: 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
breakdown thereof and
aany substantial misconduct on the part of
either of the parties, is satisfied that, if the order for
forfeiture is not made
, the one party in relation to the other be
unduly benefitted.
[13]
Shoko
v Mabaso and Others
[2015] JOL 33160(GSJ):It
is settled law that a
forfeiture order can only be granted by a court hearing the divorce
action, on the basis of oral evidence
place before it during the
divorce trial. Even in an unopposed divorce, where a
forfeiture order is sought the hearing
evidence is fundamental and
it
would,
therefore, be impermissible for a court to grant a forfeiture order
without hearing oral evidence. A forfeiture
order
cannot, therefore be sought by way of motion proceedings..”
[14]
See
unreported case of NWP v NHP (Free State Division) (Unreported case
number A201/2013).
In
Wijker
v Wijker 1993(4) SA 720 (AD)
it was stated that it is obvious from the wording of
section 7(1)
that the first step in determining whether nor not there should be
forfeiture is to determine whether or not the party against
whom the
order is sought will in fact be benefitted. Once that it is
established the second step is to determine whether
or not that
party will in relation to the other be unduly benefitted if an order
for forfeiture is not made. Then only
do the factors such as
the duration of the marriage, circumstances leading to the breakdown
and substantial misconduct come into
play. It was held in
Moodley
v Moodley (KZND (unreported case number 7241/2002,
14-7-2008)(Tshabalala JP)
that what the defendant forfeits is not his share of the common
property, but only the pecuniary benefit that he would have
otherwise derived from the marriage. It was further held that
it was of the utmost importance that the claimant, in respect
of a
claim for the forfeiture must prove some kind of contribution that
exceeds the contribution of the other party towards the
joint
estate.
[15]
Moraitis
Investments(Pty) Ltd and others v Montic Diary (Pty) ltd and Others
[2017] 3 ALL SA 485
(SCA):
in
contested proceedings, a judgment can be rescinded at the
instance of an innocent party if it was induced by fraud on
the part
of the successful litigant, or fraud to which the successful
litigant was a party. Apart from fraud, the only
other basis
recognised in our case law as empowering a court to set aside its
own order is Justus error.