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[2024] ZALMPPHC 7
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M.F.B v J.B (5674/2016) [2024] ZALMPPHC 7 (24 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
FAMILY – Divorce –
Forfeiture
–
Plaintiff
having withdrawn her pension to build house, buy car and pay for
tertiary fees of children – Defendant seeking
that plaintiff
forfeit all benefits in house and his pension – Pleadings
containing allegations of extra marital affairs
from both sides –
Defendant involved in extra-marital affair with child born out of
wedlock – Plaintiff having
obtained protection order and
left because of continuous physical abuse – Defendant not
proving any substantial misconduct
on part of plaintiff and his
claim for forfeiture failing – Plaintiff awarded 50% of
defendant's pension fund interest
in GEPF –
Divorce Act 70
of 1979
,
s 9(1).
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE,
CASE
NO: 5674/2016
REPORTABLE:
YES/
NO
OF
INTEREST TO OTHER JUDGES:
YES/
NO
REVISED
24/01/2024
In
the matter between:
M[…]
F[…] B[…]
PLAINTIFF
And
J[…]
B[…]
DEFENDANT
JUDGMENT
NAUDE-ODENDAAL
J:
[1]
The Plaintiff
instituted
a
divorce action against the Defendant
on or about 23
November 2016 in terms whereof the Plaintiff claimed for a decree of
divorce, an order that full parental responsibilities
and rights in
respect of the minor child be awarded to the parties jointly, that
the minor child's primary residence be awarded
to the Plaintiff
subject to the Defendant's right of reasonable contact, maintenance
for the minor child
in the amount of R3000
.
00
per child per month, division of the joint estate and that the
Plaintiff be awarded 50% of the Defendant's pension interest in
the
Government Employees Pension Fund ("GEPF") as defined in
Section
1
of
the
Divorce Act 70 of 1979
.
[2]
The
Defendant
instituted
a
counter-claim
in terms
whereof
he claimed
for a decree of
divorce, an order of the maintenance of the minor child be referred
to the maintenance court and an order that the
Plaintiff forfeit all
benefits arising of the patrimonial benefits, namely the property
situated at stand No. […] P[…]
Street, Emdo Park,
Polokwane and the Defendant's pension interest held by the GEPF
.
[3]
It is common cause
between the parties that they were married to each other in community
of property
in Polokwane
on the 28
th
of July 1992. There
were
four
children
born
from
the
marriage
between
the
parties.
All the
children
have
reached
the
age
of
majority
with
the
last
born
having been born on 4
August 1999.
[4]
It is further common
cause between the parties that the marriage relationship between the
parties has reached such a state of disintegration
that
there
is no
reasonable
prospect
of
the restoration
of a
normal marriage
relationship between them, although the parties disagree on the
reasons for the breakdown.
[5]
It is further common cause that the parties have not lived together
as husband and wife
since approximately
April
2014 and have continued to live separate and independent lives from
each other since 2014
.
In my view,
the only
issue
in dispute
is the division
of the joint
estate
and possible
forfeiture by the
Plaintiff
of
the patrimonial
benefits
mentioned here above.
[6]
The Plaintiff
testified that she is employed at Nirvana Primary School in Polokwane
on
a
contract
basis
and the
contract
is
being
reviewed annually
.
The Plaintiff has a
pension fund which is administered by Old Mutual.
[7]
The Plaintiff
testified
further
that she withdrew
her initial pension
fund which was to the value of R1298 834
.
66
during 2016. She utilized the money received from her pension fund to
build the house at Kwena Moloto which she and the children
(although
all majors now) were occupying, to pay debts incurred during the
subsistence of the marriage
,
to pay for the
tertiary fees of the children, to buy furniture and also to buy a
Mercedes Benz motor vehicle.
[8]
According to the
Plaintiff, the Defendant was the sole cause for the breakdown of the
marriage between them as the Defendant was
physically abusing her.
She applied for a protection order against the Defendant and the
final order was granted by the Seshego
Magistrate
'
s
Court on 13 April 2012.
The
Plaintiff
testified
that the Defendant
however
continued
to abuse her even
after the granting of the final protection order against him.
[9]
The
Plaintiff
further
testified
that
during
their
marriage
the
Defendant would
retain her bank card when she started working. This was the card
linked to the account into which her salary was
paid
.
[10]
She further testified
that a pregnant
woman
,
called B[…]
M[…], moved
into the matrimonial home after she left.
[11]
According to the
Plaintiff, both she and the Defendant
were employed by the
government. They agreed that the Defendant would be responsible for
payment of the bond installment of the
house and she would take care
and cover the other household necessities. The Plaintiff also
contributed to the extension
of
the
house
and
took
a
loan
in
the
amount
of
R100 000.00 (One
Hundred Thousand Rand) in order to buy tiles and building material
for the house. The Plaintiff specifically testified
that she bought
beds, a dining room suit, sofas, doors, floor tiles and kitchen
utensils and crockery.
[12]
The Plaintiff further
testified that she and the Defendant paid for the school fees and
transport fees for their children at primary
and secondary school.
However, she was responsible for payment of the children's tertiary
education and she financed their studies
through an Edu-loan.
The Edu loan
repayment was deducted from her salary on a monthly basis.
[13]
The Plaintiff called
a second witness, M[…] B[…].
M[…] B[…]
testified that she is the daughter
of the Plaintiff and
the Defendant.
She
testified that she does
not
know
who
paid for
her
primary
school
fees but
she knows her mother
paid for her secondary school fees.
She further testified
that she studied
at
Rostec
College
where she was
registered
for
a course
in
boiler
making,
she
however
did
not
finish
the
course
and
after
a
year registered at
Polokwane School for Fashion and Design
.
[14]
Miss. B[…] testified that the Plaintiff paid for her studies
at first, but she
later approached the Seshego Maintenance Court and applied for
maintenance
against
her father
,
the Defendant.
The Seshego
Maintenance Court
ordered the Defendant to pay an amount of R900
.
00
towards
her
studies
.
At
some
stage
the
Defendant
defaulted
on
paying the
maintenance whereafter she obtained a garnishee order from the
maintenance court.
[15]
The Defendant testified that he was employed by the South African
Police Services
.
The Plaintiff was
employed by the Department of Education and resigned
.
She was also a
member of the Government Employees Pension Fund.
[16]
According
to
the
Defendant
,
the
Plaintiff
was
involved
in
extra-marital affairs
with several men
.
He told the court
that she was approached and proposed to by another man in the bank
whereafter they exchanged numbers.
According to the
Defendant, the Plaintiff also left home over weekends
under
false
pretext
that
she
is
attending
school
workshops,
whilst
she
only
qualified
to
do
primary
school
workshops
and
not
the workshops she
said she attended to.
[17]
According to the
Defendant
,
the
Plaintiff did not contribute towards any of the bond payments of the
immovable property situated at No. […] P[…]
Street
,
Emdo Park, and
the property
still
had an outstanding
bond
,
which he was
responsible for paying.
She
also never utilized her pension fund to contribute anything
towards
their joint estate.
She used the pension
fund to buy a car and
finish her house situated at Kwena Moloto.
[18]
The Defendant
testified that has
been staying with another
woman
and they have a child
together, who is now 8 years old.
[19]
The Defendant
testified that he prays that the Plaintiff forfeit 50% of his pension
interest held by the GEPF and 50% of the immovable
property situated
at No […]
.
P[…]
Street, Emdo Park
,
Polokwane
.
[20]
Under
cross-examination, the Defendant however co
ul
d
not tell the court what the man in the bank said to the Plaintiff,
no
r
what
his name was.
In
addition,
the
Defendant
could
only
mention
the
single
man
or
incident
in
the
bank but could not give any evidence in respect of who these several
men were who he alleged the Plaintiff had extra-marital
affairs with.
[21]
Section 9(1)
of
the
Divorce Act, 70 of 1979
stipulates
as follows:-
"
(1)
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 break-down 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 will in relation to the other be unduly benefited
."
[22]
Entitlement to a
portion of pension interest of one party against the other is
governed by
Sections
7(7)
and
7
(8) of the
Divorce Act,
which
prescribe:
"
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.
(b)
The amount so
deemed to be part of
a
party
'
s
assets, shall be reduced by any amount of his pension interest which
,
by
virtue of paragraph (a), in
a
previous
divorce
–
(i)
was paid over or
awarded to another party; or
(ii)
for the purposes
of an agreement contemplated in subsection (1), was accounted in
favour of another party
(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."
[23]
From the above, it is
clear that in the determination of the patrimonial benefits the
pension interest is deemed to form part of
the joint estate.
It is therefore, the
party seeking forfeiture thereof, that must prove that the other
party is not entitled to the portion of the
pension interest.
In the present
matter, the Defendant therefore bore the onus to prove that the
Plaintiff had to forfeit her entitlement to a portion
of his pension
interest.
[24]
When a claim for
forfeiture is considered, the court must have regard to three
factors, namely
,
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
.
These factors must
not be considered cumulatively and the presence of any one of them
would entitle a court to grant an order for
forfeiture. (See
Botha
v Botha
[2006] ZASCA 6
;
2006 (4) SA 144
(SCA) and also Wijker v Wijker
1993 (4) SA
720
(A) at 729E-F
.
)
[25]
The parties had been
married since 1992 and on paper have been married for over 33 years,
however their marriage in reality only
lasted to 2014 (22 years),
after which they lived separate and independent lives.
[26]
If I were to consider
the duration of the marriage, it is common cause that the parties
have lived separate lives since 2014.
However, in
Matyila
v Matyila
1987 (3) SA 230
(W) at page 236B-C,
the
Court stated the following:
"
the
meaning of the words
'
duration
of the marriage
'
as
appearing in
Section 9(1)
aforesaid is clear
.
It means no more
or less than the period during which the marriage has
,
from
the legal point of view, subsisted, namely from the date of marriage
to the date of divorce or at
the
very
least
,
to
the
date
of
the
divorce
proceedings.
This
is
in
accordance
with
the
primary
rule
of
interpretation
that
the
words should be
understood in their ordinary meaning
."
[27]
I
n
applying
Matyila
supra
to the
facts of the present matter, the parties were therefore married for
approximately 33 years.
The
marriage should therefo
r
e
,
in my view
,
be considered
as having had a long
duration
.
[28]
In considering the
grounds and circumstances that gave r
i
se
to the break-down of the marriage, the Defendant pleaded as follows:-
"
3
.
1
The Plaintiff is
involved in extra-marital affairs with numerous men unknown to the
Defendant;
3.2
The Plaintiff
would leave the parties common home for weekend[s] under false
pretext that she is attending school workshop[s]
;
3.3
The Plaintiff
abused the Defendant emotionally
,
mentally
,
psychologically
and financially
;
3.4
The
Plaintiff
is argumentative
,
belittling
,
bully
and
[a]
control freak
;
3.5
The
Plaintiff
shows
very
little
or
no
interest
in
the
parties marriage
relationship
;
3.6
The Defendant
has
lost all love
,
affection
and
respect
for the Plaintiff
and
does
not
wish
to
continue
with
the
marriage
relationship with the Plaintiff.
"
[29]
Wh
i
le
the pleadings contained allegations of extra marital affairs
from both sides, not
much evidence was led on this issue by the Defendant, apart from the
sketchy details given by the Defendant.
It was however clear
from the evidence of the Defendant
,
himself, that
he was indeed the one who was involved in an ex
t
ra-marital
affair as he told the Court that he is staying with a woman by the
name of B[…] M[…] and that a minor child
who was at the
time of the hearing of this matter
,
already eight
years old
,
was
born out of wedlock.
[30]
The Plaintiff, in
contradiction to what was pleaded by the Defendant, testified that
the circumstances that led to the break-down
of the marriage
relationship is amongst other factors, the physical abuse by the
Defendant.
The
Plaintiff even obtained a final protection order and ultimately left
because of the continuous physical abuse by the Defendant.
The protection order
was admitted as evidence in court
.
[31]
From the evidence by
the Defendant it seemed as if he, in addition, wanted to rely on the
fact that the Plaintiff withdrew her pension
fund interest held at
GEPF during 2016 and did not utilize any of the said pension fund for
the benefit of the communal household
or matrimonial home.
This was however not
pleaded by the Defendant in his Plea or Counter-Claim.
[32]
In
my
view, the Defendant did not manage to prove that the Plaintiff was
the cause that gave rise
to
the break-down
of the marriage.
In
addition
,
in
my
view,
the
Defendant
did
not
prove
any
substantial
misconduct
on the part of the
Plaintiff.
In
the result the Defendant's claim for forfeiture must fail.
[33]
This brings me to the
claim for maintenance
.
All the children have
reached the age of majority and as far as I could derive from the
evidence of Miss. M[…] B[…],
have become independent.
There
is therefore no need
to deal with the issue of maintenance in respect of the children.
[34]
In respect of
maintenance between the parties - neither party
claimed any
maintenance for themselves from the other party and therefore also
this issue is not dealt with herein
.
[35]
The only issue
remaining is the issue of costs.
Section 10
of the
Divorce Act stipulates
that a court shall not be bound to make an
order for costs in favour of the successful party, but the court may,
having regard
to the means of the parties, and their conduct in so
far as it may
be
relevant,
make
such order as it
considers
just,
and the
court
may
order
that
the
costs
of
the
proceedings
be
apportioned between
the parties.
[36]
In the present
matter,
having regard to the
means of the parties, their conduct in so far as it may be relevant,
as well as bearing in mind that the parties
have been separated since
2014, I deem it appropriate that each party should be ordered to pay
his/her own costs.
[37]
In the result, the
following
order
is made:-
1.
A decree of divorce;
2.
Division of the joint
estate calculated as at date of divorce
.
3.
The Plaintiff
is
awarded 50% of
the Defendant's pension fund
interest in the
Government Employees Pension Fund as defined in
Section 1
of
the
Divorce Act,
70 of 1979
.
4.
The
Government
Employees
Pension
Fund
is
directed
to
endorse its records
to reflect the Plaintiffs entitlement pending payment or transfer
to
the
Plaintiff
of
the
Plaintiff's
allocated
portion
of
the
pension
interest
in terms of the
provisions
of
Section 370(4)
of
the Pension Funds Act
,
24 of
1956.
5.
Each party
to
pay his/her
own costs
.
M.
NAUDE-ODENDAAL
JUDGE
OF THE LIMPOPO DIVISION
OF
THE HIGH COURT,
POLOKWANE
APPEARANCES:
HEARD
ON:
09
NOVEMBER 2023
JUDGMENT
DELIVERED ON:
24
JANUARY 2024
For
the
Plaintiff:
Mr
.
Masekoameng
Clitus
Instructed
by:
Clitus
Masekoameng Attorneys,
Polokwane
csmasekoamengattorneys@gmail.com
For
the Defendant:
Mr.
L. Molepo
Instructed
by:
L.
Molepo Attorneys,
Polokwane
lobangmolepo@gmail.com