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[2008] ZAWCHC 309
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Peters v Peters (18272/2007) [2008] ZAWCHC 309 (2 December 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 18272/2007
In
the
matter between:
LINDA
PETERS
Applicant
and
ROY
ARNOLD PETERS
Respondent
JUDGMENT
DELIVERED ON 2 DECEMBER 2008
GAUNTLETT,
A J
[1]
The applicant was married in community of property to the
respondent. On 15 May 1996 the parties were divorced. The court
order specified that
l
the
joint estate is divided". Even if the order had not done so
r
division of course would have been the consequence, simpJy by
operation of law (
Gates
v Gates
1940 NPD 361-363
;
Keyser
v Kevser
1979(4) SA12 (T) at 15F;
Maharai
v Maharai
2002(2) SA648 (D) at 649H-I).
[2]
Nearly 12 years later, the applicant has applied for a declaratory
order sought (in its latest form) in these terms
"1.
The respondent's pension interest (under pension number 612057 in
the Cape Town Municipal Pension Fund) as at 15 May
1996 formed part
of the parties' joint estate.
Upon
the parties' divorce, half of the pension interest vested in the
applicant.
The
applicant is entitled to payment of half of the pension fund
[already paid out to the respondentjas at 15 May 1996.
The
applicant is granted leave to apply on these papers, duly
supplemented, for an order directing the respondent to pay to
the
applicant an amount equivalent to half of the pension benefit (once
the applicant has ascertained the Rand value of the
pension
benefit).
5.
The
respondent to pay the costs of this application.
n
(The
phrase which I have inserted into paragraph 3 above is to clarify
the fact that the claim is directed sofely against the
respondent
and not the pension fund itself, in view of the fact that a payout
of the pension interest occurred a number of years
ago to the
respondent).
[3]
In argument the relief sought was slightly adjusted, in terms of the
formulation that I have just outfined, without objection.
[4]
The pension benefit in question, it is common cause, has been paid
to the respondent, and no portion has been received by
the
applicant. The applicant seeks no relief against the pension fund
itself. As it happens, the applicant notified the pension
fund soon
after the divorce - attaching the decree of divorce and a notice of
intention to amend which, as J indicate below,
in the circumstances
was not itself moved, clarifying the fact that the claim to half of
the joint estate specifically included
the pension interest - but
nothing turns on that now.
[5]
The first question which arises for determination is whether (as the
respondent contends) the fact that the present relief
was not sought
at the time the decree of divorce was granted bars the application.
[6]
Section 7(7)(a) of the Divorce Act, 70 of 1979 ("the Act")
provides:
"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."
(The
provisions of sub-sections (b) and (c), counsel agree, have no
application in this matter).
[7]
Section 7(8) provides further:
"(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 sub-section (7) is due or assigned to the other party
to the
divorce action concerned, shaif 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
.
(emphasis
supplied).
[8]
Counsel for the respondent conceded (correctly, in each instance)
three matters in the course of oral argument. The first
is that the
division of the joint estate constituted a "determination of
the patrimonial benefits to which the parties ...,
may be entitled",
as contemplated by the introductory phrasing of section 7{7)(a). As
already noted that "determination"
happens in the case of
a marriage in community of property ex
lege;
in
any event, in the present case the court itself expressty so
ordered.
[9]
Counsel also correctly accepted that the deemed inclusion of the
pension interest of the respondent at the time of divorce
in the
joint estate also arises by operation of law. This is because, at
the time of divorce,
K
hls
assets" (the language of the provision) necessarily here means
the assets of the joint estate: under a joint estate (certain
exceptions aside, which do not pertain in the present case), a
person has no persona) patrimony. ("Pension interest",
it
is to be noted, is defined under the Act as meaning;
"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").
[10]
In
the
third place, it was accepted that the effect of the statutory device
of a deeming provision is to establish that consequence
in law,
whether or not it is naturally so.
In
the
present context, the deeming provision thus legtsEates for the ex
lege
inclusion
of the pension interest in the joint estate. I
n
short,
in law it is so.
[11]
I
accordingly
hold that the applicant, as at the date of divorce, became entitled
by operation of law to a half share in the pension
interest vesting
in
the
joint estate. This is pursuant to s.7(7)(a). S.7(8)(a) -
contemplated an order
at
the time of divorce
against a pension fund - does not arise in this case; the order is
sought only against the other erstwhile spouse, to whom a
payout has
occurred, not against the fund concerned.
[12]
Given this conclusion, it is unnecessary to consider the applicant's
reliance in particular detail on a prior agreement between
the
parties that the pension interest would indeed be divided in this
way. Leaving aside the rather equivocal facts in this regard,
advanced moreover in motion proceedings, it seems to me that an
agreement between the parties (other than of course one recorded
in,
and hence part of, the court order) would be legally ineffective as
against the terms of the order itself. The order would
only be
assailable in substance on narrow and radical grounds (
Union
Government v Schierhout
1925 AO 323), or be open to correction in its formulation in very
restricted circumstances (
Mostert
N.O. v Old Mutual Life Assurance Co Limited
2002(1) SA82 (SCA) at 96 D-E) none of which are advanced here.
[13]
Similar considerations apply to the respondent's rather faint
converse attempts to suggest an ex
post
facto
agreement
by the parties to divide their assets in terms other than the strict
division by value contemplated by the divorce order.
It appears from
the evidence in this regard that what took place between the parties
was a pragmatic division - as is predictably
the case - of the
parties' modest physical possessions. As the applicant aptly
describes this process in her replying affidavit:
"This
was done on a very single 'rough and ready' and unscientific basis.
Respondent and I simply divided up these items
on the basis of
convenience which we were prepared to accept was roughly fair in the
circumstances, other than in respect of
the motor vehicle and
immovable property which respondent dealt with on his own, as dealt
with below".
(She
testifies in the latter respect that the parties' immovable property
was in fact sold by the respondent, and she received
no part of the
proceeds).
[14]
No case is made out of a waiver or abandonment by the applicant of
her rights under the order.
[15]
As already noted, on the peculiar facts of the present case the
applicant does not seek to invoke section 7(8) of the Act,
least of
all - as I have noted - against the pension fund. Thus the
considerations raised in
Sempapalele
v Sempapafele
2001(2) SA 306 (O) and in
Maharaj
v Maharaj
2002(2) SA 643 (D) regarding the need for that relief to be sought
at the time of the decree of divorce itself, do not arise
here. It
is unnecessary to say anything further in relation to those cases
and what they determined.
[16]
Thus in the present case the pension interest question fell within
the joint estate; the joint estate was divided by operation
of law
and, as it happens, by court order on divorce; and the respondent
thereupon became entitled to it. The alleged agreement
after the
divorce I do not find sufficiently established; or, for the reasons
I have given, legally relevant. Similarly the
alleged agreement
before divorce is, in my view, not adequately established and would
also in any event legally ineffective against
the terms of the
order. No other valid defence has been raised by the respondent to
the relief claimed by the applicant in this
application. The
suggestion that he has now spent the paid out pension interest is
not a defence to the declaratory relief: in
any event, the pension
interest amounts to a separate fund, which in turn appears to have
been applied for the acquisition of
certain particular assets,
apparently still substantially
in
esse.
I
accordingly grant an order in terms of the draft and as quoted
earlier in this judgment, together with an order of costs.
GAUNTLETT, AJ