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[2016] ZALMPPHC 12
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M.M.S v J.M.S (HCA04/2015) [2016] ZALMPPHC 12 (28 October 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
APPEAL
CASE NO: HCA04/2015
Court
a quo: P352/10
28/10/2016
In
the matter of:
M
M
S
APPELLANT
And
J
M
S RESPONDENT
JUDGMENT
NDLOKOVANE
AJ
INTRODUCTION
1.
This is an
appeal against the judgement and order of the Regional Court,
Thabamoopo regarding the division of the joint estate in
a divorce
action.
2.
The order
amongst other things granted by the Regional Magistrate P.W Modipane
in the
court
a quo
amounts to a partial forfeiture order in respect of the Respondent’s
pension interest. The appellant is dissatisfied with
the said order
as it stands and contends that the court a quo should have gone a
step further and specifically ordered that the
division of the joint
estate shall include the Appellants’ 50% entitlement to the
Respondent’s pension interest.
FACTUAL
BACKGROUND
3.
The
appellant instituted divorce proceedings against the Respondent in
the Regional Court of Limpopo sitting at Lebowakgomo. She
prayed for
a decree of divorce, division of the joint estate and ancillary
relief. Equally, the Respondent counter claimed for
a decree of
divorce and a forfeiture in respect of the parties’ common home
situated at 3843 D Zone 2 Seshego and his pension
interest held with
Transnet.
4.
At the time
of divorce, the Respondent was employed at Transnet for almost thirty
years and has been a contributor to a pension
fund thereat. The
details of the pension fund are not disclosed. The same cannot be
said of the Appellant, although she was employed
for most part during
the existence of the marriage, she never contributed to any pension
fund.
5.
Although
the divorce proceedings were launched on the 4 March 2010,the matter
finally proceeded to trial on 16 September 2011,where-in
both parties
sought the services of legal representatives. The Appellant was
represented by Ms. De Klerk on instruction of Kgatla
Attorneys and
the Respondent was represented by Adv. I.A. Van der Eynde on
instruction of Sakkie Van Zyl. The matter was finalised
at the court
a quo on the 03 August 2012.
6.
In the
result, the court a quo gave judgement in the very terms prayed for
by the parties in their respective prayers regarding
the division of
the joint estate. However, the court a quo in coming to its decision
not to award the Appellant 50% entitlement
in respect of the
Respondent’s pension interest is as follows:
“
On this issue
taking into account the duration of the marriage especially the issue
that they have been in separation for the past
12 or 13 years, I am
unable to accede 100% to this prayer. In other words she succeed only
in part to the extent that she is entitled
to only 20% of the
Defendant’s pension interest”
THE
ISSUES
7.
The
legal issue/question to be decided in this appeal is as
follows:
7.1 Whether the
court
a quo
in exercising its discretion in terms of
section 9(1)
of
the
Divorce Act 70 of 1979
misdirected itself with regard to its
application of the provision of
section 9(1)
of the Act in granting
the partial forfeiture order.
THE
LAW
8.
The issue
of forfeiture is provided for in
section 9(1)
of the
Divorce Act 90
of 1979
and reads as follow:
“
When a decree
of divorce is granted on the grounds of irretrievable breakdown 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 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 in relation to the
other will be unduly benefitted”.
9.
In
Van
Niekerk,A Practical Guide to Patrimonial Litigation in Divorce
Actions, Issue 12 at Chapter 3 page 4,paragraph 3.3.2
he writes and I quote:
“
Writer suggests
that the principle relating to forfeiture in respect of a marriage in
community of property are probably the most
misunderstood aspect of
matrimonial litigation. A misconception exists that an order for
forfeiture where parties are married in
community of property means
that party against whom such an order is made, forfeits the right to
share in the division of the joint
estate. This is obviously
incorrect and the proper position is that such a party forfeits the
right to share in any
BENEFITS
of the marriage in community of property. What constitutes benefits?
The concept of benefits is properly explained by
Hahlo
in the South African Law of Husband and Wife 5
th
edition at page 378 where Schreiner J
(as he then was) is quoted in the decision of
Smith
v Smith
1937 WLD 126
at 127-128
that the
benefit constitutes the excess of one’s party contribution to
the estate over and above the other party’s contribution”.
THE
TEST
10.
The court
in
JW v
SW 2011(1) SA 545 GNP
has emphasised that the party who seeks a forfeiture order must first
establish the nature and extent of the benefit. If this is
not proved
the court cannot decided if the benefit was undue or not.
11.
Then
the party claiming forfeiture must show the court that the other
party will be UNDULY benefitted if the order for forfeiture
is not
made. It will not be sufficient especially in marriages in community
of property to prove that the other party will be benefitted-the
nature of a marriage in community of property will of its very nature
benefit the parties. The benefit must be undue.
12.
The first
part of this enquiry is a factual one and the second part is a value
judgement. See
Wijker
v Wijker 1993(4) SA 720 (A)
at para19,it is at this stage where the court will consider the
criterion as set out in
section 9(1)
of the
Divorce Act.
13.
In
Klerk
v Klerck 1991(1) SA 265(W)
,
Kriegler
J
decided that all factors mentioned in
section 9(1)
need not be
present. For example, misconduct on the part of the parties may exist
independently of the other factors. At page 2
67
G
-
H
,
he stated that the principal factor to be considered by the court, is
if one party will be unduly benefitted if forfeiture is
not granted.
Whether one party will be unduly benefitted at the expense of another
is a value judgement to be made by the court.
In determining whether
one party will be unduly benefitted at the expense of the other, the
three factors referred to in
section 9(1)
should be considered
individually or collectively in coming to a decision.
14.
In the case
of
Kgololesego
Keonang Tlou v Matome Solomon Ralebipi, In the High Court of South
Africa, Gauteng Division, Pretoria, case number 4081/2013,
Kollapen
J, dated: 10/08/2016.
The
court held that :
“
While not cast
in stone, it must therefore follow that in the determination of
whether a benefit is undue, a court is more likely
to make such a
determination where the marriage is of short duration as opposed to
circumstances where the marriage was of a long
duration. Simply put,
the longer the marriage the more likely it is that the benefit will
be due and proportionate and conversely,
the shorter the marriage the
more likely the benefit will be undue and disproportionate
”.
CONCLUSION
15.
Having considered and dealt with legislative provision as well as
the case law relating to the forfeiture of benefits in divorce
proceedings, I now come to the conclusion hereunder in order to
answer the question or issue raised in this appeal.
16.
The court a quo misdirected itself with regard to its application of
its discretion as set out in
section 9(1)
of the
Divorce Act,
particularly
on the issue relating to the duration which resulted it
to grant a partial forfeiture order
.
17.
In casu the parties’ civil marriage endured for some 27 years.
What should however also be taken into account is
the fact that they
entered into a customary marriage 4 years prior to the civil marriage
and that their eldest child was born some
3 years prior to their
civil marriage. Their de
facto
relationship therefore
endured for some 17 years.
18.
After the Appellant left the common home she cared for the four minor
children (with their ages between 7 and 17). She
was eventually
compelled to obtain an order in the Maintenance Court against the
Respondent to contribute towards the maintenance
of the minor
children.
19.
While the Respondent contributed towards and built up a pension
interest the Appellant contributed to the care of the Minor
children.
COSTS
20.
Given the discretion vested in the court with regard to costs, it
would in my view be just and equitable for each party to bear
their
own costs. This is fortified by the length of time to have this
matter brought to its finality and the financial strains
it must have
cost the parties to defend their respect cases. This became evident
at this hearing when the Respondent sought the
services of the legal
representative a day before the hearing who could not properly
prepare for the hearing.
ORDER
21.
In the result the appeal is upheld and the order of the court a quo
is replaced as followed:
(a)
A decree of
divorce is granted.
(b)
The joint
estate of the parties shall be divided in equal shares.
(c)
The
Respondent’s counter claim for an order in terms of
section
7(8)
(a) of Divorce Act 70 of 1990 in respect of Respondent’s
pension interest is dismissed.
(d)
Each party
shall pay his or her own costs.
_______________________________
N.
NDLOKOVANE
ACTING
JUDGE OF THE HIGH COURT, LIMPOPO, POLOKWANE
I
AGREE
_______________________________
E.M
MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO, POLOKWANE
HEARD
ON
: 21
OCTOBER 2016
JUDGMENT
DELIVERED
:
28
OCTOBER 2016
FOR
THE APPELLANT
:
M.C
DE KLERK
INSTRUCTED
BY
: DAVEL
DE DE KLERK KGATLA INC
FOR
THE RESPONDENT
:
MOSEAMEDI M.T
INSTRUCRED
BY
: MALOPE
ATTORNEYS