SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

Case Number: 11409/2022
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE : 3/2/25
SIGNATURE

In the matter between:

T[...] J[...] M[...] Plaintiff

and

K[...] J[...] M[...] First D efendant

THE GOVERNMENT EMPLOYEES PENSION FUND Second Defendant

Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines . The date and fo r hand -down is deemed to be 3 March 2025 .

Summary: Divorce action. Counterclaim for forfeiture of pension benefits and
immovable property. The plaintiff will benefit unduly and such is disturbingly
unfair. The remaining issues in the divorce action are settled. Held: (1) The
decree of divorce is granted . Held: (2) The settlement agreement marked X is
made an order of Court . Held: (3) The plaintiff is to forfeit a benefit in respect
of the pension benefits and the share of the immovable property. Held: (4)
There is no order as to costs.


JUDGMENT
MOSHOANA, J

Introduction
[1] This is a divorce action. Both divorcing parties are in agreement that the
marriage has irretrievably broken down. Resultantly, the divorcing parties
concluded a settlement agreement dealing with other issues relevant to this
action. What then remained for determination was the issue of the maintenance
of the minor child, which issue was abandoned during argument given the
uncontested evidence that the plaintiff is currently unemployed and has no
means of paying for any maintenance of the minor child , if so ordered . Given
this uncontested evidence , a maintenance order would do nothing but to invite
contempt proceedings. The legal duty of maintenance remain s even in the
situation of une mployment. When evidence of means arise, the claim for
maintenance may be instituted. Following the abandonment of the maintenance
claim , the only issue remaining for determination is a forfeiture claim in respect
of the half share of the pension interes t and the immovable property .

Background facts and evidence tendered.
[2] On 31 March 2011, the plaintiff, Mr T[...] J[...] M[...] got married to the first
defendant, Mrs K[...] J[...] M[...] by civil rights1 in community of property and that
marriage subsisted as at the time of the hearing of this action. Given the issue
that remain for determination, the salient facts in this action are that about 8
years ago, the plaintiff and the defendant acquired an immovable property
situated at Erf 1[...] M[...] M[...] (“the property”). The property was bonded to
Standard Bank of South Africa for a 20 years’ period. As at 30 January 2025,

1 A true copy of the marriage certificate was entered into evidence and marked exhibit “A”.
the outstanding amount of the bond was R366 124.72. The monthly instalment
as at 30 January 2025 was standing at R7 042.90.

[3] Since the acquisition of the property, the plaintiff never paid a cent towards the
monthly instalments of the bond account . The plaintiff held various
employments during the subsistence of the marriage and in some of those
employments, he cashed out his accumulated pension benefits without the
consent and knowledge of the first defendant . Not once did the plaintiff pay any
amount towards the Standard Bank loan. The loan account was serviced by the
plaintiff alone for the past 8 years.

[4] The first defendant held employment in a government department, as a result
of which, she became a member of the second defendant, the Government
Employees Pension Fund (GEPF) and ha d, at the time of this action ,
accumulated pension interests, the value of which was never disclosed to this
Court. In his particulars of claim, other than praying for the division of the joint
estate, the plaintiff prayed for an order that the GEPF be ordered by this Court
to endorse that 50% or such lesser percentage of the pe nsion interests is
payable to him as contemplated in section 7 of the Divorce Act, 70 of 1979
(Divorce Act). On the contrary, the first defendant prayed for forfeiture of any
percentage of the pension interest within the contemplation of section 9(1) of
the Divorce Act.

[5] Additionally, the first defendant prayed for the plaintiff to forfeit his share of the
property, in terms of section 9(1) of the Divorce Act. This Court received
testimony from both the plaintiff and the first defendant. The plaintiff also
tendered the evidence of his nephew. The nephew’s evidence was confined to
the undisputed assault charges, which were subsequently withdrawn by the
State Prosecutor on conditions that the parties resolve the issues through
mediation.

[6] The first defendant tendered her evidence first given the issues remaining for
determination. For the purpose of this judgment, the brief testimony of the first
defendant was that she is currently living with the only minor child born out of
the marriage . She has single hande dly been maintaining her for a while. She
and the plaintiff acquired the property 8 years ago. Since acquisition , she has
been servicing the loan of Standard Bank and the plaintiff never paid a cent.
The plaintiff was employed and he resigned from his employment in 2012. She
does not know what the plaintiff did with his pension benefits that had been
cashed out upon resignation.

[7] The plaintiff had left the matrimonial home since July 2022. Since then, he had
not been contributing anything to the joint estate in particular the costs
associated with the property. As far as she knows since 2011 up until 2022,
when the plaintiff left the matrimonial home, the plaintiff was unemployed. She
had been paying for the rates and taxes to the municipality. Since she was not
coping, the rates and taxes account is sitting in arrears of over R25 000.00. On
25 June 2022, the plaintiff assaulted her and broke a toilet window of the
property. This after she demanded payment of money owed to her by the
plaintiff. She presented evidence of photographs which depicted the injuries
she sustained during the assault. She had laid a criminal charge for the assault
which was late r withdrawn.

[8] She implored this Court to order forfeiture of the share in the pension interests
since the plaintiff never contributed and she had not benefited from his pension
interests when he resigned from various employments. She only heard from the
children that he bought a car or was planning to buy a car . During cross -
examination, it was suggested to her that the injuries depicted on the
photo graphs were inflicted on her by another woman after she found her in bed
with her husband. The first defe ndant vehemently disputed this suggestion and
referred to that version as a “defence mech anism” employed by the plaintiff.

[9] The plaintiff testified . Briefly , his testimony is that indeed he did not contribute a
cent towards the loan owed to Standard Bank for the acquisition of the property.
He confirmed that he received his pension funds pay -out from Pick N Pay. Out
of the R31 000.00 of the benefits he received , he gave the first defendant an
amount of R10 000.00 and the remainder of the money, he bought a car, which
he later sold and bought furniture for his rented accommodation at Mamelodi.
With the salary he received from what he termed the “piece jobs” , he was
buying meat and other food stuff. At some point he loaned an amount of R22
000.00 from the African Bank in order to buy a car for the family. He later sold
that car for an amount of R13 000.00 without informing the first defendant or
obtaining her consent. When he terminated employment with DHL in July 2023,
he received an amount of R22 000.00. This amount he did not share with the
first defendant. He left the matrimonial home because the first defendant
chased him away. This Court interpose to mention that in respect of all the
amounts received and expended by the plaintiff , not a shred of documentary
evidence was presented by him. No plausible explanation was furnished by the
plaintiff for this failure to provide any document . That he received and
expended a specific amount is his ipse dixit.

[10] He admitted , only in his evidence in chief , to have slapped the first defendant
once . He however , testified that he was acting in self -defence as the first
defendant had grabbed h im with his private parts and he was experiencing pain
at that time . He slapped her in order to ward off the painful grabbing of his
private parts. He disputed that the injuries of the first defendant as depicted on
the photographs were inflicted by him. On his version , the injuries were inflicted
in 2016 already by a woman who found the first defendant at her home on a
particular Sunday. The first defendant allegedly fled the scene of the assault
and left behind a cell phone of her daughter and her own shoes . On a Monday
the woman who assaulted the first defendant called him using the cell phone of
the daughter and relayed to him the assault. When he confronted the first
defendant about what was relayed to him she simply became dismissive and
did not wish to speak about the incident any further because she was allegedly
at work at that time . The assault , which he owned up to , happened on 25 June
2022 and he was arrested on 26 June 2022 for tha t. He appeared in Court on a
Monday when the charge of assault was withdrawn. During cross -examination,
he conceded that the bulk of his version was never put to the first defendant by
his legal representative. He also conceded that some of the monies he received
never made its way to the joint estate.

[11] The nephew of the plaintiff , Mr K[...] M[...] , is a lawyer by profession. In 2022,
when the assault happened, he was still a candidate attorney. He was
appointed by both the first defendant and his uncle to mediate their differences.
At that time, he did not observe any injuries depicted on the photographs on the
first defendant, whom he met at the matrimonial home. He and the legal team
of the plaintiff had agreed that since the mediation agreement is lost he will not
testify in corroboration with regard to the alleged terms of the alleged
agreement . He was sitting in Court throughout the testimony of his uncle. He
testified that the first defendant had asked him to include in the agreement , a
condition that the plaintiff should forfeit the pension interest and the property
should they divorce each other . He advised her that such would have been
against the law , given how the parties were married to each other . During
cross -examination, he conceded that the vital portions of his testimony were
never put to the first defendant when she testified.

Submissions
[12] Owing to the fact that these were action proceedings, the Court directed the
parties to make oral legal submissions. Counsel for the plaintiff indicated
unreadiness. After hearing oral submissions made , this Court afforded both
parties a further opportunity to submit additional written submissions within a
period of a week should the need arise . Nevertheless, the nub of the first
defendant’s argument is that the plaintiff has not contributed towards the joint
estate and it will be unfair for the plaintiff to unduly benefit . On the other hand,
the plaintiff , although conceding that he did not pay anything towards the
property, he is entitled to benefit from the pension interests as well as the
property by virtue of the type of marriage involved.

[13] It was further argued that since a single event of a common assault was
involved, such does not amount to substantial misconduct within the
contempla tion of section 9(1) of the Divorce Act. The plaintiff’s counsel later
submitted further helpful written heads as permitted by this Court. Counsel for
the first defendant submitted nothing further.

Evaluation
[14] With regard to the remaining issue, section 9(1) of the Divorce Act and its
applicability is of cardinal importance. As indicated, t he issue of maintenance of
the minor child was abandoned since there was undisputed evidence that the
plaintiff remained unemployed since h is termi nation of employment with the
DHL.

[15] The default legal position is that where parties are married in community of
property, upon divorce, the parties will share equally from the joint estate.
However, section 9(1) of the Divorce Act empowers a Court , when granting a
decree of divorce on the ground of the irretrievable breakdown of a marriage , to
order that the patrimonial benefits of the marriage be forfeited by one party in
favour of the other. The pleaded case of the first defendant is that the plaintiff
must forfeit the 50% pension interest and th e half share in the property. This
Court was not appraised of what the joint estate is comprised of as a whole . It
was suggested to the first defendant’s counsel that the case pleaded and made
is that of partial as opposed to the whole forfeiture.

[16] In action proceedings too, a party is confined to the relief sought in the
pleadings. The counter -claim of the first defendant is confined to the 50% of
pension interests and the half share of the property. This is the case the
plaintiff was to meet and met , regard had to the evidence of the first defendant .
As such, her claim cannot be enlarged during submission to include forfeiture of
the whole estate. In order to make an order of forfeiture a Court must have
regard to (a) the duration of the marriage; (b) the circumstances which gave
rise to the breakdown thereof; (c) any substantial misconduct on the part of
either of the parties; (d) satisfaction by the Court that if an order for forfeiture is
not made, the one party will in relation to the other be unduly benefited.

[17] In Wijker v Wijker (Wijker )2, it was held that the question whether a person will
unduly benefit a two -stage enquiry is involved. Firstly, whether a person will
indeed benefit, a factual question. Secondly, whether the benefit is undue, a
question involving value judgment , taking into account all the facts and the

2 1993 (4) SA 720 (A)
duration of the marriage; the circumstances of the breakdown; and any
substantial misconduct. In Molapo v Molapo (Molapo )3, it was held that undue
could be described as something disturbingly unfair .

[18] Starting with the duration of the marriage factor, the marriage involved herein
endured for 14 years as at the time of the divorce action. This could be
classified as a long duration . This neutral factor is considered in order to make
an assumption that both spouses have made contributions to the joint estate.
Contrary to the submission of the plaintiff’s counsel, t his factor is unhelpful to
this Court because there is overwhelming evidence that the plaintiff did not
make any contributions to the costs associated with the acquisition of the
property. During the subsistence of the marriage, he cashed out his pension
benefits and never deployed all or a portion of those benefits to the growth of
the joint estate , particularly the property. This Court has already remarked that
what he cashed out is not supported by any documentary e vidence.

[19] With regard to the circumstances giving rise to the breakdown of the marriage ,
it is common cause that since June 2022, the parties did not live together as
husband and wife. It was at this time that the marriage began to brake down. It
is also common cause that at that time, the plaintiff had assaulted the first
defendant. Undoubtedly, the assault gave rise to the breakdown of the marriage
and the separation of the couple. On the issue of the separation , the first
defendant testified that she suggested that the plaintiff must be away from the
matrimonial home for six months in order to deal with his anger issues. He left
and never returned after six months. The plaintiff corroborates the six months
separation but gives a different reason – until the heart of the first defendant
settles , as he testified.

[20] The plaintiff gave unreliable evidence with regard to the happening of the
assault. During cross -examination of the first defendant, a version was put by
his counsel that he never assaulted the first defendant . The first defendant was
assaulted by a woman who found her in bed with her husband , so it was put to

3 (4411/10) 2013 (14 March 2013).
the first defendant . When he testifi ed in chief, this version changed and he
unreliably testified that the assault by that woman took place on a Sunday of
2016. He only admitted to having slapped the first defendant once whilst acting
in self -defence. The evidence of the plaintiff on this score is rejected as being
false and a recent fabrication . The plaintiff did not struck the Court as a reliable
and honest witness . His demeanour in the witness box was observably
unimpressive. It was clear by mere observation of his demeanour that he
manufactured versions as he went along.

[21] With regard to substantial misconduct, it is undisputed that the plaintiff
assaulted the first defendant. Additionally, the first defendant testified at length
about the emotional abuse that the plaintiff had put her through . That evidence
remained unchallenged. In the Court ’s view , it is emotional and financial abuse
for the plaintiff to expend his pension benefits and leave the first defendant to
her own devices , with regard to the costs associated with the property. Such
conduct on its own constitute substantial miscondu ct. Although evidence was
not led as to when and by whom were the pictures depicting the injuries taken,
there is an admission that the plaintiff did in fact assault the first defendant. His
version that he slapped the first defendant , who on his version, i f it is accepted,
was inflicting excruciating and unbearable pain, only once in order to ward off
what was undoubtedly a vicious attack is hard to believe. Given vacillating
versions on this aspect, this Court finds the version of the pla intiff to be
improbable when compared to that of the first defe ndant. The fact that the State
prosecutor decided to allege a charge of common assault does not in of itself
suggest that in a common assault a visibl e injury cannot be inflicted. The
evidence of the nephew that there were no visible injuries must be treated with
extreme caution. He was present in Court when his uncle admitted to a one
slap. Given his familial relations to the plaintiff he is prone to tailoring his
testimony in order to suit that of his uncle. Accordingly, this Court rejects his
version as being unreliable and untrue. There can be no doubt that assault of a
person does constitute an act of misconduct. It encroaches on the dignity of a
person. The preamble of the Domestic Violence Act, 116 of 1998 state s that
domestic violence is a social evil. Section 1 of the Domestic Violence Act,
defines domestic violence to mean amongst others physical abuse. There can
be no doubt that an assault is a form of physical abuse. Accordingly, this Court
concludes that the plaintiff misconducted himself substantially. The argument
that the assault was not repetitive , thus not constituting a substantial
misconduct , is rejected. Even in a sexual harassment instances a single event
of harassment is sufficient and serious enough to constitute a punishable
misconduct. Nevertheless, this Court does accept that substantial misconduct
alone does not lead to a forfeiture order. However, in casu , it is coupled with
dearth of contribution on the part of the plaintiff to the augmentation of the joint
estate. The plaintiff was , on the available evidence, in a financial position to
contribute , yet he , for reasons unknown to this Court , found it befitting for him to
ignore , as it were, the financial obligations towards the costs associated with
the property . It is perspic uous that had the first defendant also ignored her
financial obligations, the property could have long been foreclo sed. Over a
period of time the plaintiff had received a lump sum of over R50 000.00 , albeit
not supported by any document . Yet he paid not even a single cent towards the
bond repayment s.

[22] Although the value of the pension interest is unknown at this stage, the plaintiff
will certainly benefit 50% of that possible substantial value of the pension
interest, in the circumstances where all his pension benefits were enjoyed by
him alone. His evidence that he gave the first defendant R10 000.00 must be
regarded as false and a recent fabrication. When the first defendant testified in
chief that he received nothing from his pension benefits , the version that he
paid her R10 000.00 was n ever put to her during cross -examination dexterously
conducted by his counsel . As held in President of the Republic of South Africa v
South African Rugby Football Union (SARFU )4 a cross -examiner has a duty to
put a differing version before it can be argued that the challenged witness is not
being truthful.5 The plaintiff was ably represented by an advocate . Failure to put
versions was fatal to the case of the plaintiff .


4 2000 (1) SA 1 (CC)
5 See also Absa Brokers (Pty) Ltd v Moshoana NO and others [2005] 10 BLLR 939 (LAC) at para 39 -
41.
[23] In the circumstances, it is disturbingly unfair for the plaintiff to benefit from the
property and the pension interest. He left the property almost three years ago
and used the proceeds of his own pension benefits to acquire other assets
outside the matrimonial home. He received his own pension benefits and not
used it to augment the value of the joint estate. Such a benefit for the half share
of the property is certainly undue. Although the conduct of the plaintiff in
encumbering the joint estate without consent and disposing the assets of the
joint assets without consent has not been pleaded as forms of substantial
misconduct, when value judgment is exercised by this Court , as it should , if
forfeiture is not ordered, the plaintiff will be unduly benefited.

[24] For all the above reason, this Court is satisfied that if forfeiture of the 50% of
the pension interests and the half share of the property is not ordered, the
plaintiff will , in relation to the first defendant be unduly benefited.

Order
1. The decree of divorce is granted and the marriage between the
plaintiff and the first defendant is hereby dissolved.
2. The settlement agreement marked X is hereby made an order of
Court.
3. The plaintiff is ordered to forfeit 50% of the pension interest held
by the first defendant at Government Employees Pension Fund
(GEPF) as defined in sectio n 1(1) of the Pension Fund Act 24 of
1996 as well as his 50% share in the property situated at Erf 1[...]
M[...] M[...] , in terms of section 9(1) of the Divorce Act.
4. There is no order as to costs .

GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA


APPEARANCES:
For the Plaintiff: Mr T Mokgoat sane
Instructed by: GN Sibuyi Attorneys, Pretoria
For the 1st Defendant : Mr M Marweshe of Marweshe Attorneys
Date of the hearing: 20-21 February 2025
Date of judgment : 03 March 2025