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2024
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[2024] ZANCHC 97
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S.J.W v V.W (Born M) (CA&R 54/2023) [2024] ZANCHC 97 (6 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
number. CA&R 54/2023
Date heard: 20/05/2024
Date delivered:
06/09/2024
Reportable:
Yes/No
Circulate
to Judges:
Yes/No
Circulate
to Magistrates: Yes/No
In
the matter between:
S[...]
J[...]
W[...]
APPELLANT
and
V[...]
W[...] (BORN
M[...])
RESPONDENT
CORAM:
Williams J et LEVER J
JUDGMENT
WILLIAMS
J:
1.
This is an appeal against the refusal by the Regional Court,
Kimberley, to grant an order
in terms of s7(8)(a)(i) of the Divorce
Act 1979 (the Act). The appeal is not opposed.
2.
The appellant, who was the plaintiff in the action, and the
respondent were married in community
of property on 27 September
1997. Three children were born of the marriage of whom two were
still minors at the date of the
divorce on 22 September 2023, a son
born on 7 December 2008 and a daughter born on 12 December 2008.
3.
In his particulars of claim the appellant pleaded
inter
alia
that he is entitled to 50% of the respondent’s pension interest
in the Government Employees Pension Fund, calculated
as at date of
divorce, pursuant to the provisions of s 7(8)(a) (i) and (ii) and s 7
(8)(b) of the Act.
4.
In addition to claiming an order of divorce, the appellant also
sought the following:
4.1
Division of the joint estate;
4.2
That both parties retain the parental responsibilities and rights
regarding the care of the minor children;
4.3
That the minor children reside primarily with the respondent;
4.4
That the parties retain the parental responsibilities and rights
regarding contact with the minor children,
together with the details
setting out the appellant’s contact with the minor children.
4.5
That both parties retain the parental responsibilities and rights
regarding the guardianship of the
minor children;
4.6
That the issue of maintenance for the minor children be referred to
the Maintenance Court;
4.7
That an endorsement be made in the records of the Government
Employees Pension Fund that 50% of the
respondent’s pension
interest in the pension fund be paid to the appellant within 60 days
after receipt of written notification
by the appellant; and
4.8
Costs of suit in the event of the action being defended.
5.
The divorce action was not opposed by the respondent although it
appears from the record
of the proceedings that she had appointed an
attorney to hold a watching brief.
6.
It transpired during the testimony of the appellant and upon
questioning by the court
a quo
that the appellant had been
unemployed since 2015 and had not paid any maintenance towards the
minor children since that time.
7.
As a result the court
a quo
held in its judgment
that:
“
. . . as far as
the application that has been made by the applicant for an order that
defendant’s pension fund be ordered
to pay 50% or any other
percentage of the plaintiff’s pension, interest or benefit in
her fund is hereby refused for the
reasons that are follow.
The main reason being,
for that matter that the parties separated as way back as 2016.
That the plaintiff has not been employed
since 2012 and the plaintiff
in his own evidence last maintained their two children in 2015 and
that therefore the maintenance
of these two children has for the past
8 years or so being solely on the shoulders of the defendant and that
even going forward
there is no indication that the defendant would be
maintaining any of these children, if they are still dependent
children and
whilst the court is not making any order for the
forfeiture of benefits.
It would be not in the
interest of justice and fairness and particularly in the interest of
these children, the dependent children,
to order the payment of any
percentage from the pension fund of the defendant, I mean, from the
defendant’s pension fund,
as this would visit even an
additional responsibility and burden on the defendant’s part
and the plaintiff would definitely
not only be unduly enriched as
against the defendant but it would be to the prejudice of also those
dependent children.
The court is of the
view that if this is an issue that can be dealt with by the parties
amongst themselves when they divide their
joint estate in the absence
of any agreement, then it is an issue that can be handled by a
receiver if appointed.”
8.
The orders made by the court
a quo
are as follows:
“
1.
That the bonds of the marriage subsisting between the Plaintiff and
the Defendant be and are hereby
dissolved.
2.
Division of the joint estate.
3.
The application for an order that defendant’s pension fund be
order to pay 50% or any
other % of the defendant’s pension
interest benefit in the fund is refused.
4.
No order is made in respect of cost.”
9.
As can be seen from the above, no orders have been made regarding the
care, contact and maintenance
of the minor children. We were
not informed as to whether this was an oversight which has been
corrected by the court
a quo,
or not. We do however
intend to deal with these aspects as far as it may be necessary in
the order made herein.
10.
As stated herein, the appeal lies solely against the court
a quo’s
refusal to order the payment of 50% of the respondent’s pension
interest to the appellant. It is therefore necessary
to have
regard to the relevant section of the Act which deal with the pension
interest of a party to a divorce i.e. s7(7)
and s 7(8)(a) of
the Act.
11.
S 7(7) of the Act reads as follows:
“
(7)(a)
In the determination of the matrimonial 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.
(c)
Paragraph (a) shall not apply to a divorce action in respect of a
marriage out of community of property entered into on or after
1
November 1984 in terms of an an nuptial contract by which community
of property, community of profit and loss and the accrual
system are
excluded.
(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”
(s7(7) and s 7(8) of the
Act should be read together with the Pension Fund Act 24 of 1956
which has been amended in s37 D(4)(a)
– (d) to provide for
payment of the awarded benefit to the non-member spouse after a
divorce)
12.
It is clear from s 7 (7)(a) that for purposes of an equitable
division upon a divorce, the
pension interest of a party is deemed to
be part of his assets, - thus part of the joint estate. It is
trite that parties
to a marriage in community of property are each
entitled to one half of the joint estate upon dissolution of the
marriage unless
they agree otherwise or the Court makes an order that
the patrimonial benefits of the marriage be forfeited by one party in
favour
of the other in terms of s9 of the Act.
13.
The refusal by the court
a quo
to grant an order in
terms of s 7(8)(a)(i) of the Act in effect amounts to a forfeiture of
the appellant’s share of the respondent’s
pension
interest or benefit in favour of the respondent, in circumstances
where the respondent has not sought a forfeiture order
in this
regard. In addition, no evidentiary basis had been laid for the
justification of such an order. The fact that
one party
benefits above the other as a result of unequal contributions made
during the course of a marriage in community of property
is one of
the inevitable consequences of the particular marital regime, unless
the benefit is undue. The burden of proving
that the other
party would be unduly benefited rests on the party who seeks the
forfeiture order (see
Engelbrecht v Engelbrecht
1989 (1) SA 567
(c) at 601)
. The court
a quo
was clearly not
entitled to refuse the appellant’s application in terms of s
7(8) (a)(i) on the basis that he would be unduly
benefited.
14.
The court a quo’s concern that the interests of the minor
children would not be served should
such an order be granted, is
likewise unfounded. It loses sight of the fact that the
respondent, who is the main caregiver
of the children, would be
highly unlikely to receive a contribution from the unemployed
appellant towards the maintenance of the
children if the appellant
does not receive payment of half of her pension interest.
Leaving aside for the moment the new
two pot retirement system which
has recently been implemented, the respondent herself would only be
entitled to her pension benefits
once it accrues to her and her
retention of 100% of the pension interest would be of no assistance
in maintaining the children
(one who has in the meantime attained
majority and the other currently 15 years old) until then. The
maintenance court would
in my view be best suited to hold an enquiry
and deal with the issue of the minor children’s maintenance.
15.
The court
a quo
has exercised its discretion injudiciously and
on the wrong principles and as a result the refusal of the
appellant’s claim
in terms of s 7(8)(a)(i) should be set aside.
16.
As mentioned herein, the order made by the court
a quo
on 22
September 2023 does not make provision for the care, contact and
maintenance rights and responsibilities relating to the
minor
children. Our order herein will encompass these aspects, as
claimed in the appellant’s particulars of claim,
in the event
the original order has not yet been varied. I may just mention
that the appellant’s particulars of claim
and prayers have been
considered by the Family Advocate and has been endorsed as being in
the best interest of the minor children.
In our view there is
nothing before us which detracts from the opinion held by the Family
Advocate.
The
following orders are made:
The
appeal succeeds.
2. Paragraph 3
of the Regional Court order under case number NCKBY/RD 153/2023 is
set aside and replaced with the following:
“
3.1
The plaintiff is entitled to 50% (fifty percent) of the defendant’s
pension interest in the Government
Employees Pension Fund with
identity number 6[...], calculated as at date of divorce pursuant to
the provisions of
s 7(8)(a)(i)
and (ii) and s
7
(8)(b) of the
Divorce Act, as
amended.
3.2
An endorsement shall be caused to be made in the records of the
Government Employees Pension Fund with
identity number: 6[...], that
50% of the defendant’s pension interest held and administered
by the Government Employees Pension
Fund be paid to the plaintiff.
3.3
The Government Employees Pension Fund is directed to pay to the
plaintiff 50% of the defendant’s
pensions interest within 60
days after receiving written notification from the plaintiff that he
elects to receive a cash benefit.”
In
addition to the above and only in the event the original court order
has not been supplemented to this effect, the following
orders are
made:
“
5.
The plaintiff and the defendant retain the parental responsibilities
and rights regarding the care
of the minor children, S[...] W[...]
and N[...] W[...], as contemplated in
Section 18(2)(a)
of the
Children’s Act, Act 38 0f 2005, subject to the following:
5.1
The minor children will reside primarily with the defendant.
5.2
The defendant will be the primary caregiver of the minor children and
will be responsible for the day-to-day
care of the minor children.
5.3
The plaintiff and the defendant retain the parental responsibilities
and rights regarding contact with
the minor children, as contemplated
in Section 18(2)(b) of the Children’s Act 38 of 2005, subject
to the following:
5.3.1 The
plaintiff will take the minor children with him, at his own expense,
every alternative weekend from 17:00
on a Friday until 17:00 on the
Sunday.
5.3.2 The
plaintiff will take the minor children with him, at his own expense,
every alternative short school holiday.
For these purposes the
March/April and September/October school holidays are regarded as
“short school holidays”.
5.3.3
Contact every alternative long school holiday. The
December/January school holiday will rotate between the
parties.
5.3.4 The
plaintiff will maintain contact with the minor children by electronic
means, telephonic calls and video calls.
Electronic contact
will only take place at reasonable times during Monday to Sunday at
16:00 pm until 18:00 pm.
5.4
The plaintiff and the defendant retain the parental responsibilities
and rights regarding the guardianship
of the minor children, as
contemplated in Section 18(2)(c), 18(3) and 18(5) of the Children’s
Act, Act 38 of 2005 (i.e. the
parties are the co-guardians of the
minor children).
6.
The issue of maintenance for the minor children is to be referred to
the Maintenance Court
for adjudication.”
CC
WILLIAMS
JUDGE
I
concur
L
G LEVER
JUDGE
For
Appellant:
Adv
M T Maluleke
Mr
LX Nana
Legal
Aid SA