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[2013] ZAFSHC 55
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M L v J L (3981/2010) [2013] ZAFSHC 55 (25 April 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3981/2010
In the matter between:-
D M L
..............................................................................................
Plaintiff
and
L J L
...........................................................................................
Defendant
_____________________________________________________
HEARD
ON:
19 MARCH 2013
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
25 APRIL 2013
_____________________________________________________
[1] These are divorce
proceedings. The parties have lived together as husband and wife.
They are now on the verge of parting ways.
Both of them agreed,
albeit on different grounds, that their marriage relationship has
irretrievably broken down. The core of their
disagreement concerns
the defendant’s claim to the plaintiff’s pension
interest.
[2] The parties were
married to each other in community of property and without an
ante-nuptial contract in Bloemfontein on 19 August
2005. The marriage
still subsists. There are no minor children born of the marriage.
There is no written agreement devolving the
patrimonial benefits.
[3] Before the marriage
the defendant was a radio announcer in the employ of the South
African Broadcasting Corporation. He was
seemingly also a member of a
pension fund then. He resigned from the SABC. Upon his resignation he
claimed his pension benefits.
The pension fund seemingly paid out to
him approximately R350 000,00 when the pension benefits of his
pension interest accrued.
[4] At the time of the
hearing, the defendant belonged to no pension or provident fund.
However, he is still gainfully occupied.
Currently he earns his
livelihood as a businessman. He runs a pub, in other words a tavern.
On average his weekly profit fluctuates
between R3 000,00 and
R5 000,00.
[5] The defendant sought,
apart from the final decree of divorce, and the forfeiture of
patrimonial benefits arising from the marriage
in community of
property, a special order declaring him to be entitled to 50% share
of what was referred to as the plaintiff’s
“pension
proceeds”.
[6] The defendant’s
counterclaim was founded upon the allegations:
that the plaintiff
habitually burdened the joint estate, without consulting the
defendant, with financial obligations which she
cannot afford to
settle;
that she contributed
virtually nothing towards the upkeep and material growth of the
joint estate;
that undue pressure was
often exerted upon the defendant to settle such debts alone and
that the plaintiff took
most of the joint assets away from the communal home when she
deserted the defendant
cum animo non revertendi
during
September 2009.
[7] The plaintiff denied
the defendant’s allegations. The foundation of her replication,
in other words, the plaintiff’s
plea, was based on the
allegations:
that the defendant was
also a member of a pension fund;
that when he left the
employment of the SABC he, through resignation, became entitled to
payment of his pension benefit;
that he subsequently
used such money exclusively for his personal benefit and
that he would,
therefore, unduly benefit if he were to receive a share in the
plaintiff’s pension benefit.
[8] Perhaps I have to add
that in her declaration attached to her summons the plaintiff had
prayed for the general division of the
joint estate.
[9] Those then were the
rules of engagement. The defendant’s grounds of the claim have
to be considered against the backdrop
of the plaintiff’s
grounds of resistance.
[10] The crisp issue in
these action proceedings was whether or not, on the peculiar factual
circumstances of this particular action,
the defendant was entitled
to an order whereby he was declared to be entitled to a 50% share of
the plaintiff’s pension interest,
calculated as at the date of
the divorce, when it eventually ripens into pension benefits on some
date in the future.
[11] The phrase “pension
interest” is defined in section 1
Divorce Act 70 of 1979
as
amended:
“
'pension
interest'
,
in relation to a party to a divorce action who-
(a)
is a member of a pension fund (excluding a retirement annuity fund),
means the benefits to which that party as
such a member would have
been entitled in terms of the rules of that fund if his membership of
the fund would have been terminated
on the date of the divorce on
account of his resignation from his office;”
(b)
The
subsection is not relevant.
[12]
In the case of
Elesang v PPC Lime Ltd and Others
2007 (6) SA 328
(NC) Olivier J observed that when regard was had to
the definition of the phrase “pension interest” it
appeared that
it applied only in the case where one of the spouses
was still a member of a pension fund at the time of the divorce.
[13]
Section 7(7)(a)
Divorce Act 70 of 1979
as amended 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.”
[14]
In the case of
Sempapalele v Sempapalele and Another
2001 (2) SA 306
(O) Musi J, as he then was, commented as follows
about subsection 7(a):
“
Now
s 7
of the
Divorce Act was
introduced precisely to improve on the
existing law. The section does not, however, abolish the existing law
but rather opens
a window and provides a mechanism, for parties
engaged in divorce proceedings, to have access to the pension
interest of either
of them for purpose of achieving an equitable
distribution of their assets. It provides that the pension interest
of a party shall
be deemed to be an asset in his estate for that
purpose. This means that the interest is not ordinarily part of
the joint
estate but shall be such for purpose of division upon
divorce.”
[15]
In pretty much the same vein in
Maharaj v Maharaj
and Others
2002 (2) SA 648
(D) at 651B Magid J approvingly
stated that it was quite clear, as held by Musi J, that prior to the
introduction of
section 7
into the divorce statute, one’s
pensions interest did not form part of the joint estate of spouses
married in community of
property.
[16] In the case of
Kotze
v Kotze and Another
2013 JOL 30037
(WCC) at [19] Saldanha J,
writing for the full bench, held:
“
It appeared
that prior to the introduction of
section 7
of the
Divorce Act, the
party whose spouse was a member of a pension fund did not have a
recognised interest in the pension of such other spouse. Where
such
benefit had not yet accrued it was not generally regarded as an asset
in such pension holder’s estate where the marriage
was in
community of property and moreover neither wat it regarded as an
asset of the joint estate. In determining the patrimonial
benefits in
the joint estate the pension expectation was not taken into account.
With the introduction of
section 7(7)(a)
in the Act the situation
changed substantially.”
[17] An individual’s
pension interest was never an asset in the joint estate of spouses
married in community of property prior
to the enactment of the
aforesaid
section 7.
Notwithstanding comments or views to the
contrary, even after the enactment of
section 7
, an individual’s
pension interest is still not an asset in a joint estate of spouses
married in community of property. It
is only an expectation of
pension benefit yielded by a ripe pension interest which becomes an
asset with real economic value –
KOTZE
’s
case,
supra
. But even then it becomes an asset in the separate
estate, post decree of divorce, of a spouse who was a member of a
pension fund.
The section deems it to be so.
[18] When a pension
interest ripens, the administrator of the pension fund concerned
determines the actual monetary value of a pension
interest. Such
value constitutes a pension benefit, which accrues from a ripe
pension interest in favour or a member spouse.
[19] A pension benefit is
accrually derivative from a pension interest. The defendant’s
entitlement, if any there is, to the
plaintiff’s future pension
benefit has to stem from the provisions of subsection (7)(a) read
together with those of subsection
(8)(a).
The former 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.”
[20] The latter provides:
“
(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;”
[21] In the case of
Eskom
Pension and Provident Fund v Krugel and Another
[2011] 4 ALL
SA 1
(SCA) at par [11] Maya JA had this to say about the two concepts
“pension interest” and “pension benefit”:
“’
Pension
interest” is narrowly defined in the
Divorce Act and
it refers
to the value of the interest which a member of a pension fund, on the
date of his divorce, has in the pension benefit
that will accrue to
him as a member of such fund at a certain future date. It is
readily apparent from all these statutory
provisions that what is
contemplated is an award to the non-member spouse of any part of this
interest (and no other amount held
by the fund in respect of the
member spouse) calculated as at the date of the divorce but with
effect from a certain date in the
future when the pension benefit
accrues to the member spouse. Once the pension benefit has
accrued i.e. beyond the date of
divorce at which time the pension
interest converts into a pension benefit, the provisions of
sections
7(7)
and
7(8)
are
no longer applicable.’”
[22] In deciding whether
a spouse of a marriage in community of property is entitled or not to
claim a share in the other spouse’s
pension interest, three
scenarios have to be borne in mind. The first scenario arises in a
case where a pension benefit accrues
from a pension interest
post-divorce, but a claim thereto is made prior to its accrual.
[23] Here the scenario
has a hybrid character. Firstly, a portion of a pension benefit
expected to accrue to a pre-divorce segment
of a pension interest
becomes claimable by a non-member. However, such a share becomes due
and payable on a future date when a
pension benefit accrues –
subsection (7)(a). The discretion entrusted to a divorce court in
terms of subsection (8)(a) is
strictly confined to such portion of a
pension interest and its corresponding pension benefit. I am of the
same view as Magid J
that subsection (7)(a) was presumably inserted
in the divorce legislation in order to ameliorate the inequitable
hardship of what
may have been regarded as an injustice to a spouse
who did not have a pension interest in any pension fund –
vide
Maharaj
’s case,
supra
, at 651C.
[24] Before the divorce
the pension interest of the member is like a nest feathered by the
financial contributions which otherwise
would have contributed
towards the growth of the patrimonial benefits of the joint estate.
It would seem to me that this was the
equitable consideration which
underlined the rationale behind the introduction of subsection
(7)(a). In the determination of the
patrimonial benefits to which the
parties to any divorce action may be entitled, it is such a segment
of a pension interest of
a member’s spouse which is deemed to
be part of such spouse’s asset in a separate estate –
subsection 7a). This
is so because subsection (7)(a) and subsection
(8)(a) apply exclusively to a pension benefit derived from a pension
interest, if
and only if, such pension interest would have accrued on
the date of the couple’s divorce.
[25] Secondly subsection
(7)(a) does not apply to any pension benefits which accrue from a
pension interest subsequent to the divorce.
This then is the other
fasette of a hybrid character of a pension interest whose existence
spans over period divided by divorce
into two intervals. A non-member
spouse has no ligitimate claim to a portion of a member’s
pension benefit accumulated or
generated or derived from such a
member spouse’s pension interest beyond the date of the
couple’s divorce –
Eskom Pension and Provident Fund
v Krugel and Another
-case,
supra
, at par [11];
Government Employees Pension Fund v Naidoo and Another
2006 (6) SA 304
(SCA) par [18].
[26] The second scenario
is encountered in a case where a pension benefit accrues from a
pension interest long before a couple’s
divorce. In the
determination of the patrimonial benefits to which the parties to a
divorce action may be entitled, there can be
no more pension interest
whatsoever in respect of which a previous non-member spouse can claim
entitlement. It would, therefore,
be obviously absurd to talk about a
pension benefit where no pension interest no longer exists –
Krugel
’s case,
supra
, at par [12]. It
logically follows that the former non-member spouse has no ligitimate
entitlement by virtue of subsection (7)(a)
and subsection (8)(a)
statutory remedies. The two subsections were not intended to apply to
pension benefits that accrued during
the subsistence of the marriage
long before their divorce. That is not the situation here –
hence my comments are
obita dicta
.
[27] The third scenario
is encountered where a pension benefit accrues from a pension benefit
neither before nor after a couple’s
divorce, but on the very
date of their divorce. In such a scenario the whole of such pension
benefit becomes subject to the provisions
of subsection (7)(a) and
subsection (8)(a). In such a scenario a member spouse would still be
a member of a pension fund at the
time a couple’s divorce is
finally decreed. A pension fund would still be identifiable, a
pension benefit would be quantifiable
and an appropriate share for a
non-member would be ascertainable. Again my views are
obita dicta
because that was not the real situation I had to grapple with.
[28] The instant matter
falls under the first scenario. It seems to me that it has all the
hallmarks of the first hybrid. It was
a real factual matrix which I
had to grapple with. In his counterclaim the defendant prayed for an
order declaring that he was
entitled to 50% of what was referred to
as the plaintiff’s “pension proceeds”. No such a
phrase or concept is
defined in
section 1
or can be found in
section
7
or anywhere else in the applicable statute as a whole. Nonetheless
I am aware and mindful of his good intentions. I took it that
by
“pension proceeds” the defendant intended to mean
“pension interest”.
[29] By means of the
deeming provisions of subsection (7)(a) read together with subsection
(8)(a), the defendant, as a non-member
spouse, would theoretically be
able to secure a pre-divorce segment of the plaintiff’s pension
interest by virtue of those
statutory provisions.
Section 7(8)(a)
defers the actual payment of part of a pension interest to a
non-member spouse to a time when any pension benefits accrue in
respect
of that member. The provisions envisage that pending an
accrual of pension benefits in the future, meaning sometime after the
date
of divorce, a non-member shall have a prospective entitlement,
however it would not be instantly enforceable entitlement to have
actual payment accelerated on the strength of the final decree of
divorce. In this matter pension benefit is still expected to
accrue
to the plaintiff from her pension interest. It cannot be
fastforwarded prior to its expected accrual date through retirement
in the ordinary course of events.
[30] The practical
difficulty I encountered in this instant matter concerned lack of
adequate particulars about the pension interest.
The pension fund or
provident fund was never identified – not in the pleadings, not
in the pre-hearing minutes and not at
any stage during the course of
the actual hearing. Hardly any averment was made in the pleadings as
regards the plaintiff’s
occupation, employer, pension fund,
membership number, its administrators or its underwriters.
[31] In an appropriate
case a court granting a decree of divorce may be inclined to exercise
it discretion in favour of a non-member
spouse, such as the
defendant, in terms of
section 7(8)(a).
However, such a discretion
cannot be exercised in a state of nothingness. In order to properly
decide whether the defendant is
entitled to have a proportionate
share in the pension interest of the plaintiff, sufficient and
accurate details of the pension
fund have to be placed before the
court.
[32] It is clear and
obvious that unless such details are known and disclosed a court
decreeing divorce would be unable to make
an order:
that any part of the
pension interest
shall be paid by that
fund
to the
non-member spouse when the pension benefits accrue –
vide
subsection (8)(a)(i);
that the registrar of
the court in question
shall forthwith notify the fund concerned
that an endorsement be made
in the records of that fund
to
the effect that a specific part of the pension interest concerned as
percentaged, calculated and valued as on the date of
the divorce has
been awarded to the non-member spouse;
that such award shall be
payable to the non-member spouse whilst the pension benefits accrues
in the future;
that
the
administrator of that pension fund
shall furnish written proof
of such endorsement to the court registrar within one month of
receipt of such notification –
vide
subsection
(8)(a)(ii).
[33] It is logically
apparent from the aforegoing requisite elements of an appropriate
structure of a court order that the subsection
envisages that a
particular fund has to be specifically identified. That was not done
in this matter. The
onus
of doing so rested on the claimant of
the entitlement to the fruits of the pension interest – viz
pension benefits. He failed
to discharge the onus
.
In
Sempapalele’s
case
supra
, at 312B-C Musi J
found:
“
Only the
relevant pension fund would be in a position to furnish the value of
the pension benefit at the relevant time and therefore
it
stands to reason that such pension fund must be identified as well
.”
[34] Dr Oelofse urged me
to make an order in terms of subsection (8) in favour of the
defendant in spite of the shortcomings of
his pleadings and evidence.
Her argument was based on the compassionate grounds that in the
future the defendant would never afford
to bring an application to
court to claim his share of the plaintiff’s pension benefit. I
have sympathy with the defendant’s
predicament. The high costs
of litigation in the high court are prohibitive and deplorable.
However, that consideration cannot
override the deficiencies of the
defendant’s case. I find myself handicapped by the lamentable
paucity of constructive information
needed to craft an appropriate
order in terms of
section 7(8).
[35] In the case
Old
Mutual Life Assurance Co (SA) Ltd & Another v Swemmer
2004 (5) SA 373
(SCA) at par [26], Van Heerden AJA, as she then was,
said this about the imperative function of the high courts to
carefully formulate
divorce orders:
“
This case
cogently illustrates the importance of deeds of settlement and
divorce orders relating to pension interests being formulated
very
carefully indeed in order to ensure that they fall within the ambit
of
ss 7(7)
and
7
(8) of the Act. If this is done, then all that would
be required of the pension fund in question is to perform
administrative functions
to give effect to the order, without the
rights of the fund or the relationship between the fund and the
member spouse being affected
in any way, and it would not be
necessary to join the fund as a party to the divorce proceedings.”
[36] It is prudent for an
attorney acting for a non-member spouse to establish, at least, the
identity of the pension fund without
delay. As soon as a notice of
set-down has been delivered, the administrator of the fund concerned
must be approached with the
request to advise as to what the value of
the pension interest would be if its pension benefits were to accrue
on the last date
of the hearing – being a date on which the
court would be expected to grant a decree of divorce. The dealings
between the
non-member spouse and the member’s pension fund are
purely administrative and not necessarily judicial communicative
processes.
For instance, the value of a pension interest can be
verified by a letter provided such member has no objection. Otherwise
the
non-members would have to proof the authenticity as well as the
truth of the contents of the letter in accordance with the rules
of
evidence.
[37] A pension interest
as regards a member of a pension fund who is involved in a divorce
action means the benefits to which that
member would have been
entitled in terms of the rules of that fund if his membership of the
fund would have been terminated on
the date of the divorce on account
of his resignation from his office –
section 1(1).
See
Elesang’s
case
supra
, at par [9].
[38] At the moment the
parties are on the verge of the divorce. In determining the
patrimonial benefits to which they may be entitled,
it has to be
borne in mind that, at present, there is really no actual asset in
the patrimonial basket called pension interest
or pension benefit
which they can immediately share according to the common law rules of
divorce. See
Swemmer’s
case,
supra
, at par
[19].
[39] The pension interest
of the plaintiff will mature sometime after her divorce. Upon her
retirement or earlier resignation, whichever
event shall occur first,
she will be entitled to harvest the fruits thereof, termed pension
benefits. The pension benefits can
only accrue to the plaintiff from
her pension interest either through retirement or resignation.
[40] Before the accrual
date of her pension benefits her pension interest will not be deemed
to be an asset in her separate estate
created by her divorce. The
words “in his separate estate” as used in the section
requires that such a distinction
be made between the fruits of the
pension interest which form part of the patrimonial benefits at the
time of the divorce and thus
claimable and those which do not and
thus unclaimable when the spouses divorce. It would be absurd to talk
of a phrase “separate
estate” of a spouse during the
subsistence of a marriage in community of property.
[41] The defendant would
not be entitled to a 50% interest in the plaintiff’s entire
pension interest as he prayed for in
his counterclaim. His personal
patrimonial interest in her pension interest is limited to that
interval of the pension interest
which coincided with the subsistence
of the marriage –
section 7(7).
To that particular portion of
the pension interest both spouses would be entitled to share the
pension benefits of the pension
interest as generated between the
date of commencement of her membership of the pension fund or the
date of their marriage (whichever
event occurred last) and the date
of their divorce. The defendant would not be entitled to any share of
the pension benefits to
be generated after the date of the divorce.
This is so because the post-divorce pension interest would be
sustained by the plaintiff’s
exclusive resources of her
separate estate.
[42] It can, therefore,
be seen that a pension benefit constitute a rather unique patrimonial
benefit of a marriage in community
of property. Since 1989 it is
deemed to be an asset but it is not immediately deliverable upon
divorce as is the case with ordinay
assets. It is specially protected
by means of a special statutory endorsement – subsection
8(a)(ii). Such a special relief
for such a unique asset requires
special averments in the pleading of a non-member spouse. A spouse
claiming an unusual relief
must plead the necessary facts to support
that unusual claim and formulate a proper prayer to define the nature
of the unusual
relief sought –
Khoza v Khoza
1982
(3) SA 462
(T), cited by analogy only. In that case a spouse in a
marriage out of community unusually prayed for forfeiture of
patrimonial
benefits without pleading the necessary facts to sustain
such extraordinary relief.
[43] While it is not
necessary to cite the pension fund concerned as a co-defendant –
Swemmer
’s case,
supra
, a spouse claiming
an entitlement to the pension interest of another spouse has to plead
the necessary facts on which such special
relief is founded or can be
said to be founded. In my view such a spouse would do well to aver
facts relating to the other spouse’s
employer; the other spouse
occupation; the name of the pension fund; the administrator thereof;
the underwriter thereof; the other
pouse membership number; the
agreed retirement date of the other spouse, being the date on which
the pension benefits would in
the normal course of events, accrue to
the member spouse –
Swemmer’s
case,
supra
,
at par [4]. Since none of those necessary facts are known to me, I am
unable to entertain the defendant’s special prayer
for a share
in the plaintiff’s pension interest. In the light of the
conclusion I have reached it becomes unnecessary to
consider the
defence raised by the plaintiff against the defendant’s claim.
[44] As regards the rest
of the patrimonial benefits the defendant prayed for forfeiture. This
particular prayer also emerged from
the blue. No foundation for it
was laid in his pleadings. There were no crucial factors averred on
which he relied for such a relief.
The prayer for the forfeiture of
benefits is governed by
section 9(1)
of the
Divorce Act 70 of 1979
which provides:
“
(1) When a
decree of divorce is granted on the ground of the irretrievable
break-down of 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 an 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.”
[45] About that section
the author, R H Hahlo:
The South African Law of Husband and
Wife
, Fifth Edition, on p 373 comments:
“
All this has
changed. There are no longer ‘innocent’ or ‘guilty’
spouses in the old sense. ‘Substantial
misconduct’ on the
part of one or other of the spouses is only one of the factors which
the court may take into consideration.
And while it is presumably
still the law that the courts may not make a forfeiture order unless
one of the spouses applies for
it, it is within the discretion of the
court whether to make an order or to withhold it. It may make it in
favour of the plaintiff
or the defendant – there is nothing to
preclude it from making an order in favour of the spouse who formerly
would have been
considered the guilty one.”
[46] The parties were
married to each other about eight years ago. However, they did not
live together as husband and wife for that
entire period. They
cohabited for about four and a half years only. They have been living
apart for the past three and a half years.
Cohabitation ceased during
September 2009. Therefore, they have effectively lived together as
husband and wife for less than 5
years. The summons was issued about
three years ago on 6 August 2010. In my view the duration of their
marriage was very short
bearing in mind that a marital relationship
normally endures for life.
[47] It was common cause
that the plaintiff has a child born out of wedlock. Her undisputed
evidence was that she conceived the
child after the marital
separation
a mensa et toro
during September 2009. The fact
remains, though, that the child was conceived and born during the
subsistence of the bond of marriage.
To that extent, the plaintiff
was guilty of adultery, a serious matrimonial misconduct.
[48] The plaintiff
alleged that cohabitation ceased on account of the defendant’s
misconduct. Her evidence was that she caught
the defendant and the
couple’s housekeeper having sexual intercourse at the couple’s
place of residence. She averred
that she found the defendant’s
misconduct so irreconcilable with the normal marriage relationship
that she decided to leave
the defendant with the intention of never
returning to him.
[49] Although the
defendant denied the allegation, I believed the version of the
plaintiff. She impressed me as a candid witness
whose evidence was
credible and reliable. Accordingly I find that the defendant was also
guilty of adultery, a matrimonial transgression
generally regarded as
a very serious misconduct.
[50] Some balancing act
is therefore required here. Both parties did not come to court with
clean hands. Both were guilty of the
same matrimonial transgression.
He misbehaved first and wrecked the marriage. She misbehaved later
and destroyed any reasonable
prospect of reconciliation, however
remote it might have been. Having said that, I hasten to add that, in
my view, the circumstances
which really gave rise to the irreversible
breakdown of the couple’s marriage were chiefly precipitated by
the defendant’s
conduct. The moral blameworthiness of his
misdeed comparatively constituted more substantial misconduct than
the plaintiff’s.
But guilt
per se
is no longer an
overriding or decisive factor when a prayer for forfeiture is
considered – Hahlo,
supra
.
[51] In the peculiar
circumstances of this particular divorce action I have come to the
conclusion that if an order of forfeiture
is made, the plaintiff
will, in relation to the defendant, be unduly prejudiced and thus
matrimonially disadvantaged. On the facts
it is my considered view
that the defendant has not made out a case to justify his prayer that
the plaintiff should forfit the
patrimonial benefits arising out of
the marriage. I would, therefore, exercise my discretion to withhold
making such an order.
[52] The plaintiff prayed
for the division of the joint estate in her declaration. However, in
her testimony she urged me to award
all the patrimonial benefits of
their marriage in community of property, save for her pension
benefits, to the defendant. Surprisingly
her request was contested by
the defendant. Failing forfeiture order, the defendant’s legal
representative urged me to grant
a division order for the general
division without any specific qualification or exclusion.
[53] The division of
assets between married but divorcing couples is governed by
section 7
Divorce Act 70 of 1979
as regards the regime of this couples
marriage. The section provides:
“
(1) A court
granting a decree of divorce may in accordance with
a
written agreement
between the parties make an order with regard to the division of the
assets of the parties or the payment of maintenance by the
one party
to the other.
(2) In the absence of an order made in
terms of subsection (1) with regard to the payment of maintenance by
the one party to the
other, the court may, having regard to the
existing or prospective means of each of the parties, their
respective earning capacities,
financial needs and obligations, the
age of each of the parties, the duration of the marriage, the
standard of living of the parties
prior to the divorce, their conduct
in so far as it may be relevant to the break-down of the marriage, an
order in terms of subsection
(3) and any other factor which in the
opinion of the court should be taken into account, make an order
which the court finds just
in respect of the payment of maintenance
by the one party to the other for any period until the death or
remarriage of the party
in whose favour the order is given, whichever
event may first occur.”
[54] Where there is a
written agreement, in other words, a deed of settlement, a court can
make an order for the division of the
joint estate in a particular
manner as agreed upon by the spouses themselves – vide
subsection1.
[55] Where there is no
written agreement whereby specific assets of the joint estate are
exclusively awarded to a particular spouse,
a court is not empowered
mero motu
to make an order in terms of which specific joint
assets are allocated to particular spouses against their will –
vide
subsection 2. This is implicit when the two subsections
are conjunctively read.
[56] There was no written
agreement in this particular matter as envisaged in subsection (1).
Since subsection (1) does not apply
the matter at hand would seem to
be governed by subsection (2). That subsection is silent as regards
the division of the couple’s
assets. It follows, therefore,
that I cannot accede to the plaintiff’s testimonial request. To
do so would offend subsection
(1) read with subsection (2).
[57] I have already dealt
with the legal position concerning a spouse’s claim to pension
benefits. I have pointed out that
a pension benefit which accrues
from a pension interest is a unique patrimonial benefit which needs
to be pertinently pleaded and
claimed. It does not automatically fall
within the ambit of a customary division of the joint estate. I am
prompted to make these
remarks because I gained the impression that
the plaintiff laboured under the misconception that a general order
of division of
patrimonial benefits would entitle the defendant to a
share of her pension interest. That is not the case. I hasten to add
that
if the defendant also thought likewise, as I think he did, he
too was mistaken.
[58] Finally I am
satisfied that the marriage relationship between the parties has
irretrievably disintegrated and that there exists
no reasonable
prospects of restoring it to a normal marriage relationship.
Therefore, I am inclined to decree an order of divorce.
I do so
primarily on the version of the plaintiff. The defendant’s
plea, counterclaim and testimony stand dismissed to the
extent of
their inconsistency with the plaintiff’s declaration,
plaintiff’s plea and her testimony.
[59] On the facts, I am
of the view that making an order of costs against the defendant would
be a travesty of justice. He was born
on 18 August 1958; she on 20
August 1982. He is 24 years older than she is. He suffers from a
treadful disease according to his
undisputed evidence. He projected
the image of a frail and fragile man. He is clearly in a poor state
of health. He desparately
needs money for regular medical treatment.
I am, therefore, inclined to exercise my discretion by making no
order as to the costs
of this action.
[60] In the result I make
the following order:
The decree of divorce
is granted.
The joint estate shall
be divided.
There shall be no order
of costs.
______________
M. H. RAMPAI, J
On behalf of the
plaintiff: Attorney M. Khang
Instructed by:
Mphafi Khang Attormeys
BLOEMFONTEIN
On behalf of the
defendant: Dr J.M. Oelofse
Instructed by:
Oelofse & Kriel
Attorneys
BLOEMFONTEIN
/spieterse