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[2024] ZALMPPHC 69
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T.S.S v M.A.S - Appeal (HCA04/2023) [2024] ZALMPPHC 69 (22 July 2024)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: HCA04/2023
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
In
the matter between:
T[…]
S[…] S[…]
APPELLANT
And
M[…]
A[…] S[…]
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant and respondent were married to each other in community
of property on 18
th
September 2009. From the said marriage
one minor child was born on […]
th
A[…] 2012.
The respondent had instituted a divorce action against the appellant
seeking orders for a decree of divorce;
equal division of the joint
estate; 50% share of the appellant’s pension interest; primary
residence of the minor child be
awarded to the appellant subject to
the respondent’s right to reasonable contact; both parties to
retain full parental responsibilities
over the minor child; both
parties to be guardians of the minor child; and the issue of
maintenance to be referred to the maintenance
court. The respondent’s
grounds for divorce were mainly the alleged infidelity by the
appellant with several men, which resulted
in the parties living
separately for a period exceeding 2 years.
[2]
The appellant had defended the respondent’s action. In her plea
to the respondent’s particulars
of claim, the appellant had
conceded that their marriage relationship had broken down
irretrievably and there are no reasonable
prospects for restoration
of a normal marriage relationship between them, but denied the
respondent’s reasons for the breakdown
of the marriage.
[3]
The appellant had filed a counterclaim. In her counterclaim the
appellant is also accusing the respondent
of infidelity which
resulted in the respondent fathering a child out of the wedlock. That
the respondent did not support the appellant
financially, and also
that the respondent’s contribution towards the joint household
and their joint estate was minimal.
Further that when the respondent
resigned from Blouberg Municipality around 2016-2017 he had enjoyed
his pension pay-out alone
and did not share it with the appellant
during the subsistence of the marriage. The appellant was seeking
orders for a decree of
divorce; forfeiture of benefits arising out of
the marriage in community of property; and joint custody of the minor
child.
[4]
The parties have registered their immovable property into the names
of their minor child. At the commencement
of the trial the respondent
had abandoned his claim in respect of the immovable property, and
pursued the claim against the appellant’s
pension interest. The
only issue which the court
a quo
was called upon to determine
was whether the respondent should forfeit his 50% share of the
appellant’s pension interest
administered by Government
Employees Pension Fund (GEPF). The parties have agreed during their
pretrial conference that the appellant
bore the onus of prove that
the respondent should forfeit his share of the appellant’s
pension interest.
[5]
The appellant had testified under oath. She testified that she and
the respondent were married to each
other in community of property,
profit and loss on 18
th
September 2009. Her marriage
between her and the respondent had irretrievably broken down and
there is no prospect of restoration
of a normal marriage relationship
in that the respondent is not supporting her financially; they are
always quarrelling and have
different interest in their marriage; the
respondent had adulterous relationships with different woman which
state of affairs she
finds irreconcilable with the continued normal
marriage relationship. That the respondent’s adulterous
relationship resulted
in him having a child out of their wedlock. She
was a victim of gender-based violence and had opened a case with the
South African
Police Services (SAPS). The respondent had told her
that he knew that he was not a good husband as he was not doing what
a good
husband should do to his wife.
[6]
The appellant stated that she was the one who was doing most of the
financial support for the family.
The respondent had resigned from
his employment without discussing that with her. After he had
resigned, the appellant spent all
his pension money without sharing
it with her. Even after the respondent had spent his pension money,
the appellant continued to
support him financially. The appellant
would give the respondent money and also provide him with a car to
attend to his interviews
as a job seeker. Despite the assistance
which the appellant was giving to the respondent, when the respondent
found employment
in Johannesburg he took the mother of his
illegitimate child and went to stay with her in Johannesburg. After
she discovered what
the respondent was doing, she forgave him, but
told him that since she was now self-sufficient they must end their
marriage. The
respondent acknowledged that their marriage was not in
its best condition.
[7]
When the respondent resigned from Blouberg Municipality in 2013, he
received a pension pay-out in the
amount of R522 567.82. She never
knew how much pension pay-out was paid to the respondent, but only
saw that amount for the first
time from the documentation presented
in court. All that she knew was that the respondent had received a
pension pay-out. The only
thing that the respondent was doing, was to
buy food whenever he wants. Even to support the minor child, the
respondent will do
so when he wants. When she asked the respondent
about his pension pay-out, he told her that part of the payment he
had used it
to pay his debts. However, when the appellant did her own
investigations, she found that the appellant was addicted to gambling
and had used his pension money on gambling and also sending some to
the mother of the child born out of wedlock. The respondent
only
started supporting their minor child faithfully after he had started
the divorce process.
[8]
The respondent did not make any contribution towards her pension
interest held at GEPF. According to
the statement from GEPF her
pension interest is valued at R1 602 639 plus lump sum gratuity
payable to the beneficiaries valued
at R1 000 000.00. For the reasons
that the respondent had not been a good husband; the respondent had
not been financially supporting
her; the respondent had resigned from
Blouberg Municipality without consulting her; the respondent had
spent his pension pay-out
after resigning from the municipality
alone; and as she is having two children, she had intended her
pension interest to take care
of them, the respondent will unduly
benefit should an order for forfeiture of his 50% share in the
appellant’s pension interest
not be ordered.
[9]
During 2017 she and the respondent went to VVV Motors as she wanted
to buy a car. The car she wanted
to buy was priced at R52 000.00. She
paid for the car from her own bank account and there was short of R12
000.00 from what the
dealership was requesting. She borrowed R12
000.00 from her cousin, and her cousin paid that amount into the bank
account of the
respondent. The respondent in turn transferred that
amount into the account of the dealership. The respondent is
economical with
the truth when he alleges that the R12 000.00 was his
money that he had contributed towards buying the car.
[10]
During 2020 the appellant had caught the respondent red handed with
the mother of his illegitimate child
despite the respondent having
told her that he and his girlfriend have separated. The respondent
had even employed his girlfriend
as his assistant in one of the
companies he was working for. The respondent was not honest as he
kept on going backward and forward
with her girlfriend, and the
appellant felt that she could not be in a relationship with the
respondent.
[11]
The appellant was cross-examined and she stated that she wanted to
divorce the respondent during 2013 but
could not do so as she was
financially constraint, and when she tried to do online divorce the
respondent refused to accept the
divorce papers. Even though it could
not be proven, the respondent was using traditional herbs on her
which was to make sure that
his malicious plans were working for him.
Everyone in their families knew that their marriage had long ended,
and that they did
not have a happy marriage. The appellant stated
that she will not dispute that the appellant had used a portion of
his pension
pay-out to settle his motor finance loan in the amount of
R95 000.00 and ABSA credit card loan in the amount of R45 000.00 as
she
was not aware of that.
[12]
The appellant stated that the respondent never bought a television
set, sofas and dishwasher with his pension
pay-out, or at any stage
during the subsistence of their marriage. That the only thing that
the respondent bought during 2013 after
he had resigned was a geyser,
but at that time he was already employed at another company. The
appellant stated that she and the
respondent have been married
together for 13 years, but during that 13 years period, they have
separated from each other on several
occasions. The appellant denied
that she had applied for a protection order against the respondent as
the respondent had caught
her being involved in extra marital affairs
with one S[…] N[…], T[…] M[…] and P[…]
V[…].
The appellant denied that when she and the respondent
finally separated in 2019 was because the respondent had discovered
that
the appellant had recently went on vacation with his boyfriend
T[…] M[…]. The appellant stated that the reason why
the
respondent had left their common home was that she had chased him out
of their common home since he was continuing to be dishonest.
[13]
The appellant conceded that the R12 000.00 was paid into the
dealership bank account by the respondent, but
denied that it was
part of the portion of the pension pay-out to the respondent. The
appellant conceded that she is not saying
the respondent never gave
her money during the subsistence of their marriage, but that he had
spent his pension pay-out alone.
The appellant stated that during
their 13 years marriage relationship, she and the respondent were
helping each other, but that
she did not receive a cent from the
respondent’s pension pay-out. The appellant conceded that
during 2013 the respondent
had arranged a holiday vacation for him
and her, but denied that the respondent had used the pension pay-out
for that trip, but
that he had used the complimentary tickets he
received for gambling, and that if he had used the pension money, it
was for the
benefit of both of them. The appellant conceded that it
is possible that the respondent might have used his pension pay-out
for
the benefit of the of the entire family, but she did not know.
That concluded the appellant’s evidence.
[14]
The plaintiff applied for absolution from the instance, which
application was dismissed. The respondent testified
under oath and
stated that one minor child was born from his marriage relationship
with the appellant. When he and appellant started
staying together as
husband and wife he had rented a property for them and was paying
R4000.00 per month. The minor child was born
during 2012, and he and
the appellant were both taking care of the minor child. The
respondent alleges that he was giving the appellant
R1 800.00 to R2
000.00 as contribution towards the maintenance of the minor child.
[15]
During 2013 the respondent had resigned from his employment at
Blouberg Municipality. After his resignation,
he paid all the debts
that he was having with the pension pay-out from the municipality. He
paid R95 000.00 which was the residual
amount for the Nissan hardbody
and R45 000.00 for the ABSA credit card. The appellant never chased
him out of their common home
because of having spent the pension
pay-out. The respondent stated that one day during 2011 he was
surprised whilst at work to
receive a call from Bochum SAPS telling
him that the appellant had obtained a protection order against him.
However, on the date
on which they were supposed to appear in court
the appellant did not come to court, and the protection order was
cancelled.
[16]
The appellant stated that when he resigned from Blouberg
municipality, he had discussed that with the appellant.
He had told
the appellant that at his employment he was having political issues
with his employer and was afraid that they were
going to suspend him
and was scared that if that happens he will never get employment
again. The respondent told the appellant
that it will be in his best
interest if he resigned in order to protect his integrity so that one
day he will be able to get employment
somewhere. The appellant did
not have any problems with the respondent resigning from his
employment. At the time of his resignation
the value of his pension
interest at the Municipal Employees’ Pension Fund was R522
167.82. R89 940.20 was tax amount paid
to SARS, and he was paid R432
152.67.
[17]
The respondent alleges that he had left their matrimonial home during
December 2019. It was not for the first
time that he had to leave
their common home. The first time he left when he was served with the
protection order, and later returned
to their common home. The
respondent denied that the appellant had allowed him to return to
their common home because he was using
traditional herbs against her.
The appellant stated that when they were facing challenges in their
marriage, they both used to
consult a Zionist priest at the
appellant’s home place in Mpumalanga. The respondent denied
ever taking the appellant to
traditional healer.
[18]
The reasons why he left the common home in December 2019 was that on
5
th
August the appellant travelled to Thailand and spent a
week there with T[…] M[…] without informing him. When
he came
back home, he found that the appellant had left their minor
child with the lady who was looking after the minor child after
preschool.
He could not reach the appellant on her cell phone, but
sometimes he could only be able to reach her on the whatsApp chat. He
only
knew that the appellant was in Thailand on her return. The
appellant started posting the photos of T[…] on her profile
status,
and when he commented on that, the appellant will respond by
saying “more still to come”. The respondent saw that it
was in their best interest for him to leave their common home in
order to avoid a fight, or killing of each other.
[19]
When the appellant was inviting him to go on vacation with her in
Durban, she was trying to soften him. By
then the respondent had
already make up his mind that he will never travel together with her
to any of her destination, and he
decided to quit their marriage.
That is when the appellant confirmed to the respondent that she was
in love with that boy. On 3
rd
December 2020 the respondent
met the appellant with that boy at Saskia Fusion Boutique and they
told him that they were in love,
and there was nothing he could do.
The appellant told the respondent that he can file for divorce.
[20]
The respondent alleges that when he was still employed and Blouberg
Municipality, one day he found the appellant
talking on her phone
with S[…] N[…] the ANC secretary at Ehlanzeni region.
After they finished talking, the appellant
told him that it was her
brother who had phoned her and had booked at Bolivia Lodge. The
appellant was having the keys for the
room of Bolivia Lodge. He went
with the appellant at Bolivia Lodge and she gave the keys to N[…].
In the morning the appellant
took the respondent’s body lotion
and told him that N[…] had forgotten his. In order to avoid a
fight, he allowed
the appellant to take his lotion and to deliver it
to N[…], but had suspicions that something was happening. The
appellant’s
mother told the respondent that the relationship
between the appellant and N[…] is a thing that happened a long
time ago,
and that confirmed the respondent’s suspicions.
[21]
P[…] V[…] was a member of SACCAWU national and was
working for Government Pension Administration.
The appellant was the
chairperson of SACCAWU in Polokwane, and V[…] used to phone
the appellant at night. When V[…]
was visiting regions, the
appellant will travel with him and they will sleep together. One day
the respondent phoned the appellant,
and the appellant told him that
she was in Thabazimbi, but when he went to her workplace he found the
appellant. The appellant
confessed that she was in a love
relationship with V[…] and that they will end it.
[22]
The incident of T[…] M[…] in 2019 was the last straw,
and that is when the respondent thought
that the marriage between him
and the appellant was over. According to the respondent, the
appellant was also trying his patience,
as in 2019 the appellant had
assaulted him with an open hand, and he got scared, worried and was
asking himself what the appellant
was trying to achieve.
[23]
On 14
th
October 2017 the appellant wanted to buy a small
bakkie that was costing R52 000.00. The appellant had R40 000.00 and
was short
of R12 000.00. The respondent paid the shortfall of R12
000.00 to Tripple V Motors, and that money was not paid into his bank
account
by the appellant’s cousin. The appellant loved touring
and when they were touring it was not only through complimentary
tickets.
They have travelled to Swaziland, Zimbabwe via Zambia,
Mozambique 2 times, Cape Town and KwaZulu Natal. Some of the trips
were
through complimentary tickets, but not all of them. They were
both contributing equally for their trips.
[24]
The appellant knew all of the respondent’s children. The
respondent is having two children not with
the appellant, and were
born on […]
th
J[…] 1997 and 3[…]
th
M[…] 2006. All these children were born before he got married
to the appellant. He and the appellant got married on 18
th
September 2009. The respondent denied that he was addicted to
gambling. The respondent denied that he only started supporting their
minor child regularly after he had instituted the divorce proceedings
against the appellant, but that he had been maintaining the
minor
child properly even before the institution of the divorce
proceedings. From June 2017 up to December 2020 he had given the
appellant more R130 000.00 as maintenance for the minor child, and
was paying that voluntarily. The appellant had never taken him
to the
maintenance court. Their pension interest held at GEPF should be
shared equally.
[25]
The respondent was cross-examined and he denied that he had spent his
pension pay-out on the mother of her
other child without using it for
the benefit of their joint estate, but that even the appellant during
her testimony had testified
that they were doing thing together and
helping each other. The respondent stated that after he had resigned
from Blouberg Municipality
in 2013, he was staying with the appellant
until he found another employment during 2015. Therefore, it is not
true that he had
spent his pension pay-out with his concubines. The
respondent stated that he had filed for divorce as the appellant was
abusing
him, not because he wanted her pension money. The respondent
denied that he is having a child who was born during 2012 as a result
of his extra marital affairs. The respondent denied that the
appellant had chased him out of their common home because of his
infidelity. The respondent stated that he had left the common home
permanently in 2019 because he had discovered that on 5
th
August 2019 the appellant had gone to Thailand with another man. That
concluded the evidence of the respondent and he closed his
case.
[26]
The court
a quo
found that both parties have contributed
towards the breakdown of their marriage relationship, the respondent
after receipt of
his pension pay-out had utilised it without
accounting to the appellant but had made some contribution towards
the growth of their
joint estate which the appellant regards as
minimal. The court
a quo
concluded that the respondent will
not unduly benefit if the court orders that he share one half of the
pension interest of the
appellant. The court
a quo
made orders
granting decree of divorce, equal division of the joint state, that
both parties pension interest held at GEPF be shared
equally,
together with other ancillary orders. The appellant is aggrieved by
the order that the respondent is entitled to a share
of her pension
interest and is appealing against that order.
[27]
The court
a
quo
in
refusing to grant the appellant a partial forfeiture order in respect
of her pension interest was exercising a discretion provided
for in
section 9 of the
Divorce
Act
[1]
(The Act). Section 9 of
the Act gives the Court discretion when granting a divorce on the
ground of the irretrievable breakdown
of the marriage to make an
order that the patrimonial benefits of the marriage be forfeited by
on a party in favour of the other
party. In
Wijker
v Wijker
[2]
the Court held that the benefit that will be received cannot be
viewed in isolation, but in order to determine whether a party
will
be unduly benefited the court must have regard to the factors
mentioned in the section of the Act. Those factors are duration
of
the marriage, the circumstances which gave rise to the breakdown and
any substantial misconduct on the part of either of the
parties.
[28]
In
Botha
v Botha
[3]
the court held that the three factors governing the value judgment to
be made by the trial court in terms of section 9(1) fall
within a
relatively narrow ambit, and that the catch-all phrase permitting the
Court, in addition to the factors listed, to have
regard to ‘any
other factor’ was conspicuously absent from the section. It was
further held that the trial Court may
therefore not have regard to
any other factors other than those listed in s 9(1) in determining
whether or not the spouse against
whom the forfeiture order is
claimed will, in relation to the other spouse, be unduly benefited if
such order is not made.
[29]
The issue which this court is called upon to determine is whether the
appellant is entitled to a partial
forfeiture order in respect of her
pension interest held at GEPF. The basis upon which the appellant is
seeking a partial forfeiture
order is that she alleges that when the
respondent resigned from Blouberg Municipality during 2013, he had
expended his pension
pay-out alone.
[30]
It is trite that an appellate court can only interfere in the
exercise of the discretion by the trial Court
in limited
circumstances like, where it is shown that the court
a
quo
has
misdirected itself by taking irrelevant considerations into account;
that it has exercised its discretion for no substantial
reason; that
the discretion was not exercised judicially or was exercised based on
a wrong appreciation of the facts or wrong principles
of law. (See
Giddy No
v JC Barnard and Partners
[4]
).
[31]
In terms of section 7(7) of the Act pension interest are deemed to
form part of the parties’ joint
estate. A party seeking
forfeiture must prove that the other party is not entitled to the
portion of the pension interest. (See
M
v M
[5]
).
In the case at hand the appellant bore the onus to prove that the
respondent had to forfeit his entitlement to a portion of her
pension
interest. Both parties are members of GEPF. As at 31
st
March 2021 the appellant’s pension interest was valued at R1
602 639.00, whilst that of the respondent as at 27
th
September 2021 was valued at R399 695.00.
[32]
As at the date of divorce, the parties have been married to each
other for 13 years. The parties have therefore
been married to each
other for long period of time. In the pleadings the parties are
accusing each other of infidelity. The court
a quo
has found
that both parties have contributed to the irretrievable breakdown of
their marriage. That issue is not been challenged
on this appeal. In
fact, during the appeal hearing counsel for the appellant had
conceded that the court
a quo
had correctly found that both
parties have contributed towards the breakdown their marriage.
[33]
The grounds upon which the appellant is seeking partial forfeiture is
based on the allegations that when the respondent
resigned from
Blouberg Municipality during 2013, he resigned without the
appellant’s knowledge, had enjoyed his pension pay-out
alone
and did not share it with her. When the respondent resigned from
Blouberg the parties were still living together as husband
and wife.
If the respondent was no longer going to work it was easy for the
appellant to have noticed that. It was not the appellant’s
version that even after the respondent had resigned, he was waking
everyday pretending as if he was going to work. The probable
version
is that of the respondent that he had told the appellant that he was
going to resign due to political pressure at the workplace.
[34]
It might be that the respondent had not disclosed to the appellant
how much pension pay-out did he receive
after his resignation.
However, the respondent during trial in the court
a quo
, had
given a detailed account of how much he had received and how he had
expended his pension pay-out. The appellant herself had
testified
that she and the respondent were doing things together. It was not
disputed when the respondent testified that they used
to tour
together, and when they undertook those tours, they will contribute
equally for those trips. If during that period the
respondent was not
employed, but was able to do things together with the appellant for
the enhancement of their joint estate, and
also contribute equally
with the appellant on the trips that they were undertaking, the only
inference to be drawn is that the
respondent was using his pension
pay-out which was used for the benefit of both parties.
[35]
There is the issue of R12 000.00 which was paid from the account of
the respondent when the appellant was
purchasing a small bakkie.
According to the appellant’s testimony that amount was from the
appellant’s cousin. However,
the appellant could not explain
why her cousin did not pay that amount directly to the dealership
account since she had already
paid the dealership R40 000.00, or why
was that amount was not paid into her account. The appellant did not
call her cousin to
testify in order to corroborate her on this
version. It was not explained why her cousin was not called. The only
inference to
be drawn is that she was afraid that her cousin might
contradict her on that version. The respondent had testified that R12
000.00
came from his account and was part of the pension pay-out that
he had received when he resigned from Blouberg Municipality. In my
view, the appellant is one who is economic with the truth. If indeed
the R12 000.00 was from her cousin, the appellant had failed
to give
any reasons why there was a need to use the respondent as a
middleman, and not pay that amount directly to the dealership
or into
her bank account.
[36]
The appellant had testified that the respondent was maintaining their
minor child as and when he wishes.
She is not saying that respondent
was totality failing to take care of their minor child. There is no
evidence that there was a
stage when the respondent was taken to the
maintenance court due to his delinquent behaviours. Even during the
period after resignation,
there was no complaint that the respondent
was failing in his duties of taking care of the minor child. The
respondent had testified
that he was giving the appellant a certain
amount of money as a contribution towards the maintenance of the
minor child.
[36]
In my view, even though the respondent might have not disclosed to
the appellant how much he had received
as his pension pay-out, part
of the pay-out was used to settle the debts of their joint estate,
used for both their enjoyment,
enhancement of their joint estate, and
also for the maintenance of their minor child. It can therefore not
be said that the respondent
had enjoyed his pension pay-out alone
without sharing it with the appellant. Taking into consideration the
totality of the evidence
placed before the court
a quo
, there
are no reasons to fault it in the manner in which it had exercised
its discretion. Therefore, there is no basis upon which
this court
may interfere with the factual findings or discretion of the court
a
quo
. It follows that the appeal stands to fail.
[37]
In the result the following order is made:
37.1 The appeal is
dismissed with costs.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I
AGREE
DEANE
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the appellant
Adv
KP Mokwena
Instructed
by
Mamogo
Mogale Attorneys
Counsel
for the respondent
Adv
Sefudi
Instructed
by
Ntene
Attorneys
Date
heard
17
th
May 2024
Electronically
circulated on
22
nd
July 2024
[1]
70
of 1979
[2]
1993
(4) SA 720
(A) at 731G
[3]
[2006] ZASCA 6
;
2006
(4) SA 144
(SCA) at para 8
[4]
[2006] ZACC 13
;
2007
(5) SA 525
(CC) at para 19
[5]
[2023]
ZASCA 33
(31 March 2023) at para 22