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[2015] ZAGPPHC 442
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Mmotlana v Manyane and Another (61254/14) [2015] ZAGPPHC 442 (22 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 61254/14
DATE:
22 JUNE 2015
In the matter
between:
MATLAKU ROSINA
MMOTLANA
......................................................................................
Applicant
And
MABUSA VINCENT
MANYANE
..............................................................................
First
Respondent
GOVERNMENT
EMPLOYEES PENSION
FUND
..............................................
Second
Respondent
JUDGMENT
DEWRANCE
AJ
[1]
In this application, the applicant seeks orders declaring that:
her ex-husband, the first respondent, is a member of the Government
Employees Pension Fund (second respondent); that she is entitled to
50% of her ex-husband’s pension interest calculated from
9
March 2006; that the Government Employees Pension Fund be ordered to
effect payment to her of the 50% pension interest as at
6 March 2009
(this is obviously a mistake and should be 9 March 2006) within three
months from date of this order. As is customary,
she seeks an order
that her ex-husband pays the costs of this application.
[2]
The background facts leading to this application are fairly
straightforward. The applicant was married to the first respondent in
community of property. The marriage subsisted from 10 October 2002
until 9 March 2006 when the late Patel J granted a decree of
divorce.
[3]
The order reads as follows:
“
1
THE bonds of marriage subsisting between plaintiff and defendant be
and are hereby dissolved.
2.
THAT custody and control of the minor child be and is hereby
awarded to the plaintiff, with reasonable access to defendant.
3.
THAT the defendant pay maintenance for the minor child in the
amount of R600.00 per month.
4.
Division
of the joint estate
."
(emphasis
added)
[4]
The application is opposed by the first respondent but no heads
of argument were filed by him and neither was there any appearance
on
his behalf.
[5]
Before dealing with the merits of this application, it is
important to deal with the following issues, namely:
[5.1]
whether this court lacks jurisdiction to adjudicate this dispute;
[5.2]
condonation for the late filing of the application;
[5.3]
whether the relief sought by the applicant is competent because
the order of Patel J did not provide that the applicant is entitled
to a pension interest as defined in the Divorce Act 70 of 1979 (“the
Divorce Act&rdquo
;).
JURISDICTION
[6]
In his answering affidavit, the first respondent states that he
is an
incola
of the North West High Court and that that court is the court of
competent jurisdiction and not this court.
[7]
The applicant, on the other hand, contends that this court has
jurisdiction by virtue of the fact that the second respondent is an
incola
of this court. She seeks an order that the second respondent effect
payment of the 50% pension interest of the first respondent
to her,
which pension interest is held by the second respondent.
[8]
In
Estates
Agents Board v Lett,
it was stated that the question of
whether a court has jurisdiction depends on (a) the nature of the
proceedings, (b) the nature
of the relief claimed therein, or (c) in
some cases, both (a) and (b).
[9]
In
Kibe
v Mphoko and Another
", it was stated that where
the respondent is a
peregrinus
the court has jurisdiction if, in the case of a mandatory interdict,
the act is to be carried out within such area, or in the case
of a
prohibitory interdict, the act against which the interdict is
claimed, is about to be done in such area.
[10]
In the matter at hand, the applicant seeks a declaratory order
directed at the order of Patel J as well as an order directing the
second respondent, who is an
incola
of this court, to perform an act. The act must be performed in this
jurisdiction. If the principles laid down in the
Lek
judgment
supra
are followed, I am satisfied that this court has jurisdiction.
[11]
Accordingly, this point
in
limine
is dismissed.
DECREE
OF DIVORCE OF 2006 AND CONDONATION
[12]
I propose to deal with the second and third issues simultaneously
because, in my view, they are inextricably linked.
[13]
The applicant points out that this application is brought more
than eight years after the order of Patel J. She was not aware of
the
amendment of the “
applicable
legislation which enabled [her] to apply for the payment of [her] 50%
interesf.
She only became aware of the “
applicable
legislation
” recently.
[14]
This is the sum total of the application for condonation. No
prayer for condonation is sought in the notice of motion. The
applicant’s
founding affidavit does not identify the applicable
legislation which she alleges she became aware of recently.
[15]
The first respondent, in his answering affidavit, contends that
the order of Patel J did not provide that the applicant is entitled
to a pension interest as defined in the
Divorce Act; the
court order
was also not issued in terms of section 37D(4) of the Pension Funds
Act 24 of 1956 (“
Pension Funds Act&rdquo
;) as it did not set
out the percentage of the member’s pension interest or specific
amount; and that the Fund was not expressly
ordered to endorse its
records and make payment of the pension interest.
[16]
The applicant, on the other hand, contends that, in terms of the
decree of divorce, the joint estate of the parties must be divided.
The pension interest of the first respondent formed part of the joint
estate which should be divided on an equal basis.
[17]
She
stated that the relief sought “
will
provide the second respondent with the necessary information to give
effect of the decree of divorce regarding the division
of joint
estate which included the first respondent’s pension interest
.
[18]
Section 7(8)
of the
Divorce Act provides
that:
“
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)
...” (emphasis added)
[19]
However,
section 7(7)
of the
Divorce Act deems
the pension
interest as part of that party’s assets. It provides as
follows:
"(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)
..."
[20]
Section 37D(1)(d)
of the
Pension Funds Act provides
that:
“
(1)
A registered fund may
-
(d)
deduct from a member's benefit or minimum individual reserve, as
the case may be
-
(i)
any amount payable in terms of a maintenance order
as
defined in section 1 of the Maintenance Act, 1998 (Act
No 99 of 1998); or
(ii)
any
amount assigned from his or her pension interest to a nonmember
spouse in terms of a decree granted under section
7(8)(a)
of the Divorce Act. 1979 (Act No 70 of 1979):
(e)
... ” (emphasis added)
[21]
Section 37D(4) deals with the mechanics of effecting payment of
the pension interest.
[22]
An interpretation of section 7(7)(a) read with section 7(8)
suggests that any order made in terms of section 7(8) must be made
simultaneously
with the order for a decree of divorce.
[23]
Patel J did not make an order that a portion of the pension
interest should be assigned to the applicant. It merely states that
the joint estate should be divided. In the absence of an application
for varying the order of Patel J, this application is still
born.
[24]
Turning back to condonation, it is common cause that this
application has been brought eight years from the date of divorce.
The
reasons for condonation and the prospects of success are weak.
[25]
Therefore, the application for condonation stands to be
dismissed.
[26]
Accordingly, the following order is made:
[26.1]
the application for condonation is dismissed;
[26.2]
the main application is dismissed;
[26.3]
no order as to costs.
DEWRANCE,
AJ
Representation
for the applicant
Counsel
Adv A R Venter
Instructed
by Attorneys: Jordaan and Smith Inc
73
Thomas Edison Street
Menlo
Park
Pretoria
Ref:
Mr Johan Jordaan/A027 Tel: 012 346 1840
5
1979 (3) SA 104
8 (A) at 106 3F
"
1958 (1)SA 364(0)