SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
COURT A QUO CASE NO.: 22341/ 19
APPEAL CASE NO.: A288/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED : YES
DATE : 27/3/2025
SIGNATURE
In the matter between: -
M[...] J[...] L[...] Plaintiff
v
L[...] O[...] L[...] (BORN: M[...] ) Defenda nt
Heard on: 25-26 November 2024 and 11 March 2025
Delivered: 27 March 2025 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded to
the CaseLines system of the GD and by release to SAFLII. The date and time for hand -
down is deemed to be 14:00 on 27 March 2025.
Summary:
In action proceeding s the defendant sought a partial forfeiture order against the
plaintiff, namely in respect of the immovable property and her pension benefits.
1. It was confirmed that partial rescission of divorce orders is permissible where the
divorce decree is severable from proprietary or other relief sought, D v D (GJ)
A3079/IS (12 February 2016 )
2. The reasoning is that it is in the interest of justice to craft an order that permits
the previously divorced status of the parties to continue, while affording a party to
prosecute the other aspects of the claim.
3. A court may order forfeiture it is satisf ied that a party, will in relation to the other
be unduly benefited (Wijker v Wijker) 3 SA720A
4. A forfeiture claim should be determined in the divorce proceedings at the time the
decree of divorce is granted . In this case the forfeiture issue was ventilated in the
divorce proceedings that resumed after the court hearing the rescission
application ordered that the defendant file her plea and counterclaim.
ORDER
________________________________________________________________ ___
It is ordered: -
1. The counterclaim is upheld;
2. The plaintiff forfeits the benefits of the marriage in community of property
in respect of:
2.1 the immovable property situated at No. 6[...], B[...] Gardens, S [...]
Drive, Polokwane, Limpopo Province; and
2.2 the defendant’s pension interest in the Government Employees
Pension Fund.
3. The plaintiff is ordered to pay the costs of these proceedings.
JUDGMENT
___________________________________________________________________
KOOVERJIE J
[1] In these action proceedings, the defendant, Mrs L[...], seeks a partial forfeiture
order against the plaintiff, Mr L[...], in respect of her immovable property and her
pension interests in the Government Employees Pension Fund.
[2] On 26 August 2000, the parties were married to each other, at Polokwane, in
community of property. On the 26 August 2019, the court granted a divorce
order together with the division of the joint estate.
ISSUE FOR DETERMINATION
[3] The main issue for determination is whether Mrs L[...] is entitled to a forfeiture
order pertaining to her property and her pension interest. Mr L[...], the plaintiff,
opposes the forfeiture relief.
[4] A claim for forfeiture of benefits is governed by Section 9 of the Divorce Act, No.
70 of 1979 (Divorce Act), which provides for the forfeiture of patrimonial benefits
of the marriage. A patrimonial benefit is a benefit that accrues to a party’s
interest in the assets of the estate of the marriage by virtue of the marriage.
THE PLEADINGS
[5] Prior to this matter being matter being heard , the parties had instituted other
proceedings in court. It thus necessary to understand the context in which I
heard the matter.
[6] Mr L[...] instituted divorce proceedings, which were not defended by Mrs L[...].
The orders granted were a divorce decree and a division of the joint estate.
[7] In order to claim 50% of Mrs L[...]’s pension benefits, Mr L[...] applied for the
variation of the court order to include details of the respondent’s pension fund
and give effect to S7(7) and S78 of the Divorce Act.
[8] This is when Mrs L[...] realized that the divorce together with the division of the
joint estate orders entitled Mr L[...] to not only his share in the immovable
property but in her pension interests as well.
[9] She then sought legal assistance and was advised to file a rescission application.
The court hearing the rescission application granted Mrs L[...] leave to file a plea
and counterclaim in the divorce proceedings. A partial rescission was granted ,
since the divorce order was not rescinded. Only the order prayer 2 “division of
the joint estate” was rescinded. At the time Mr L[...] neither pursue d the variation
application nor did he oppose the rescission application.
[10] In her rescission application, Mrs L[...] explained that when the divorce order was
granted, she did not appreciate the consequences of the order. She did not
appoint a legal representative at the time. It was her understanding that each
party would maintain their assets which they had in their possession at the time.
In her case, it was the immovable property located at 6[...] B[...] Gardens, S[...]
Street, Bendor, Polokwane and her full pension interest.
[11] The value of her assets at the date of the divorce regarding the immovable
property was R570,000.00 , and her pension interest in the Government
Employees Pension Fund was estimated to be R2,279,144.00.
POINT IN LIMINE
12] The court mero motu raised a point namely whether a claim for forfeiture of the
benefits of the marriage in community of property in terms of S9(1) of the Divorce
Act may be made on their facts.
[13] This point was raised in light of the recent Phokobye matter1 ,where the full court
expressed that forfeiture relief must be sought at the time the decree of divorce is
granted .
[14] The full court expressed at para 13 “It is trite that at the date of the divorce, a
marriage in community of property is visited with an order for division of the joint
estate under an order for forfeiture of benefits is granted in terms of S9(1) of the
Divorce Act. This means that apart from certain exceptions, all assets of the
parties at date of their marriage and acquired thereafter falls within the joint
1 Mothibedi Alfred Phokobye v Fe licia Mosima Adelaide Nkhumishe 2024 Full Bench decision of Gauteng
High Court, 29 August 2024 , case no .:A151/2023
estate by virtue of S7(7)(a) of the Divorce Act, this includes the spouse pension
interest”.
[15] It was argued by counsel for Mrs L[...], that the facts are distinguishable in this
matter. In Phokobye, the applicant instituted a variation application so that he
could benefit from the respondent’s pension interest. The respondent in her
answering pape rs, sought an order that the applicant forfeits the benefits of the
joint estate. Accordingly, the court a quo considered the matter and granted the
forfeiture order in the respondent’s favour .
[16] On appeal, the Appeal Court found that, in the circumsta nces, it was irregular for
the court a quo to have considered the forfeiture issue in the variation
application. It expressed that the forfeiture relief must be sought at the time the
decree of divorce is granted .
[17] I find that the facts of this matter are distinguishable . Firstly, there is a court order
which directs Mrs L[...] to file her plea and counterclaim in the divorce action
proceedings . Secondly Mrs L[...] did not attempt to make her case out in the
variation application. She was advised to file a rescission application to annul the
divorce orders granted.
[18] The court hearing the rescission application, granted a partial rescission by only
rescinding the “division of the joint estate” order. The decree of divorce was not
rescinded. The matter then resumed in the proceedings instituted in the divorce
action on the forfeiture issued . Evidence was then led by both parties on the
forfeiture aspect .
[19] The granting of partial rescission of the divorce order s are permissible . In the
Togo matter2 the court was seized with a rescission of a divorce order and where
the spousal maintenance was the disputed issue.
[20] Togo followed the approach in M v M3, where the divorce status of the parties
was not rescinded. The court only rescinded the proprietary aspect . The court
accepted that the parties wish to remain divorced. The court also appreciated
that their party was entitled to have her dispute resolved. It echoed the
sentiments that judgment depriving her rightly or wrongly of her rights should not
have been taken in her absence.
[21] The Appeal Court in D v D 4 was in agreement that partial recission of the
proprietary aspects of the divorce judgment was permissible . The court
supported the view that it would serve the interest of justice to craft an order that
permits in effect the previously divorced status of the parties to continue, while
affording a party to prosecute the other aspects of the claim5 . Consequently, the
court’s order in the rescission application is permissible.
On the facts of the matter before me, the relief sought for the forfeiture of benefits
are not in conflict with the legal proposition set out in Phokobye. The issue was
ventilated under the divorce . In the premises, the matter is properly before me to
adjudicate the matter .
THE FORFEITURE CLAIM
[22] In her counterclaim Mrs L[...] pleaded that the cause for the breakdown of the
marriage was due to the following factors:
2 Mathepe Mildred Togo & Paladi Piet Molabe and Eskom Provident Fund (29059/2014 [2016 ]
ZAGPP16C 666 (26 July 2016)
3 M v M (2007[2011] ZAGPPHC /155(27 May 2011
4 D v D (A3079 [2016] ZAGPJH C31(12 February 2016
5 Supra at paragraph 3 of D v D
22.1 Mr L[...] was involved in extramarital affairs;
22.2 Mrs L[...] was humiliated by Mr L[...] during their marriage ;
22.3 he abused Mrs L[...] in all possible ways;
22.4 he failed to contribute towards their joint estate;
22.5 the parties separated in 2014 and had not since lived together as husband
and wife.
[23] In justifying her claim for partial forfeiture of the benefits of the marriage in
community of property, Mrs L[...] pleaded that the forfeiture is premised not only
on factors that led to the breakdown of the marriage but on substantial
misconduct due to Mr L[...]’s extra -marital relationships as well as the manner in
which he made one sided decisions regarding his finances and asse ts. In
particular, the joint estate did not benefit from his pension fund.
[24] Section 9(1) provides as follows:
“When a decree of divorce is granted on the ground of the irretrievable
breakdown of a marriage, the court may make an order that the patrimonial
benefits of the marriage were 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 breakdown 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
benefitted.
The entitlement to a half share in the pension interest of the other spouse is
governed by Sections 7(7) and 7(8) of the Divorce Act. It provides:
7(a) In the determination of patrimonial benefits to which the parties to any
divorce action may be entitled;
a pension interest of a party shall, subject to the paragraphs (b) and (c) be
deemed to be part of his assets.”
[25] This court has a discretion when granting a divorce on the grounds of
irretrievab le breakdown of the marriage or civil union in order that the patrimonial
benefits of the marriage be forfeited by one party in favour of the other. The
court may only order forfeiture if it is satisfied that one party will, in relation to the
other, be unduly benefitted. The court has a wide discretion and it may order
forfeiture in respect of a whole or part of the benefits.6 The court needs to ask
itself whether one party will be unduly benefited if an order of forfeiture has not
been made7.
ANALYSIS
[26] In my deliberation I had considered the evidence of both parties.
MRS L[...]’S TESTIMONY
[27] Mrs L[...] is currently 58 years old and still in the employment of the South African
National Defence Force in the position as Private Corporal. She testified as
follows :
27.1 she had a daughter , L[...], prior to meeting Mr L[...]. L[...] was born in
1986. She met Mr L[...] in 1991 and thereafter they married in 2000;
27.2 she commenced work with the South African National Defence Force in
1997 and was supporting Mr L[...] at the time;
6 Engelbrecht v Engelbrecht 1989 (1) SA 597 C
7 Wijker v Wijker 1993 (4) SA 720 A
27.3 Mr L[...] only commenced his employment as a teacher in 1999 . At the
time she was in Potchefstroom;
27.4 she relocated to Polokwane in 2001 with her daughter , L[...], where she
resided with Mr L[...]’s family in his parental home;
27.5 since she was the only one employed at the time, she was responsible for
all the household expenses , which included that of her mother -in-law, as
well as the extended family that resided on the property ;
27.6 Mrs L[...] explained that at this time Mr L[...] did not financially support her
or L[...]. She was reliant solely on her income ;
27.7 in 2005 , Mr L[...] returned to Polokwane but stayed in another town,
Lebo wakgomo. She then moved in with Mr L[...] at Lebowakgomo and
stayed there until 2014;
27.8 Unbeknown to Mrs L[...], Mr L[...] had an extramarital affair from which a
daughter was born in 2002 from this relationship. She was only made
aware of this fact in 2010 when he brought the child to his parental home.
At the time the child was already 8 years old.
27.9 after he made this disclosure, Mr L[...] openly communicated with his
mistress, and he would visit her often in Pretoria;
27.10 Mrs L[...] explained she was hurt and felt betrayed by Mr L[...]. She was
expected to merely accept Mr L[...]’s life with another family ;
27.11 the parties eventually separated in 2014. She explained that prior thereto,
she continued to live in Lebowakgomo without Mr L[...]. She eventually
left Lebowakgomo and went to live with her daughter on the stand .
27.12 during their marriage, Mr L[...] purchased various motor vehicles. In 2004
he purchased a Ford Courier Bakkie without her consent. In 2009 he
purchased a Ford Focus once again without discussing it with her. He
only requested her to accompany him to the dealership to sign the
necessary documents to acquire the motor vehicle. In 2011 he purchased
a Corsa from a colleague for R30,000.00. She had to pay the purchase
price . She used her bonus and savings for the purchase . The Corsa was
however registered in his name. In 2013 he purchased a Polo Vivo once
again without discussing it with her;
27.13 She always desired a family home . This was the reason for the purchase
of the stand. She suggested to Mr L[...] that they build their own house on
the stand. Mr L[...]’s response was merely since he has his parental
home , he was not interested in the stand. It was on this basis that she
approached her daughter, L[...], to purchase the stand;
27.14 thereafter Mrs L[...] purchased the property situated in B[...] Gardens on
30 March 2014 for R495,000.00. The property was bonded in favour of
Nedbank. Mrs L[...] explained that she had discuss ions with Mr L[...]
again. He, however, made it clear that he would not be liable for any
paym ents in respect of the property . Mrs L[...] nevertheless purchased the
property , honoured the bond payments and effected the necessary
renovations on the property . She testified that Mr L[...] failed to make any
contributions to the property . He also never visited her at this home ;
27.15 Mr L[...] had a good relationship with their daughter, L[...]. He supported
her emotionally and academically in her school studies. She claimed that
he failed to maintain her financially. Mrs L[...] had always given him cash
to give to their daughter ;
27.16 since L[...] did well in her studies, she only required financial support
during her first year of university . After her second year she qualified for a
full bursary which covered all her university expense s;
27.17 L[...] was given an allowance of R500.00 per month in this time;
27.18 under cross -examination Mrs L[...] explained that although she was in an
unhappy marriage and the parties had separated, she did not proceed
with the divorce action as her religious beliefs did not permit her to do so.
Hence when Mr L[...] instituted the divorce proceedings, she did not
oppose same;
27.19 she also explained that they were very happy during the initial years of
their marriage . It was on this basis that she agreed that L[...] adopt his
surname . Their relationship took a toll once he became involved in the
extramarit al relationship;
27.20 in respect of the alleged life policy that Mr L[...] took out in her name, she
testified that her understanding was that it was a funeral policy which he
had purchased in her name .
L[...]’S TESTIMONY
[28] L[...], the daughter, testified that:
28.1 she is currently 38 years old and married. She is almost qualified as a
chartered accountant. She has one exam left in order to qualify ;
28.2 she confirmed that from her second year she was fortunate to receive
bursaries in order to finish her studies;
28.3 she also confirmed that Mrs L[...] would give her money and support her.
On occasions when Mr L[...] would hand money to her, she knew that the
cash came from Mrs L[...]. L[...] was required on each occasion to confirm
with her mother that she received the cash from her father ;
28.4 L[...] was aware that the parents did not have a good relationship. She
recalled an incident where she witnessed her father abusing her mother .
He physically dragged her from the car. Mrs L[...] was upset that he was
leaving their home to visit his mistress in Pretoria ;
28.5 she explained that she learnt that her father was involved with someone
else when she saw his car parked outside a hotel. At that time he
presented a different alibi for not being at home;
28.6 she however explained that in her younger years, she had a great
relationship with her father. He supported her emotionally and in her
school studies. He specifically taught her math ematics which resulted in
her doing well in this subject ;
28.7 L[...] also confirmed that when they would go on trips together as a family,
Mrs L[...] was requested to pay for the petrol.
MR L[...]’S TESTIMONY
[29] Mr L[...] testified that:
29.1 he is currently 57 years old. He is employed as the Head of Department
at the Department of Educat ion, Gauteng Province;
29.2 the parties have not lived together as husband and wife since 2014;
29.3 he had always financially contr ibuted towards the home. Prior to their
breakup when the parties lived in Lebowakgomo , he was responsible for
the rental payments ;
29.4 he had a good relationship with L[...] and he had provided her with
whatever she required during her growing -up years . He claimed to have
given her R1000.00 on a regular basis ;
29.5 when he had bought the vehicle, specifically the Ford Courier in 2004, as
well as the Ford Focus, Mrs L[...] agreed to these purchase s;
29.6 he was forced to buy another vehicle in 2013 as the Ford Courier was not
in a good condition. It was then that they bought the Polo Vivo. He
testified that Mrs L[...] agreed to the purchase of the vehicle as well;
29.7 when Mrs L[...] was interested in buying the property at B[...] Gardens, he
had complied with her request and participated in ensuring that the bond
application was processed and approved on both parties’ earnings. It was
agreed between them that they would use her bank account for the debit
orders. Moreover, since she had a house allowance in terms of her
employment benefits , it was agreed that she would pay for the home;
29.8 he testified that he took out a life insurance policy , in the name of Mrs L[...]
(as bondholder). It was a requirement for the bond application;
29.9 Mrs L[...] agreed that he could use his pension payout to make
improvements at his parental home;
29.10 he denied that he had extramarital affairs. He explained that he had a
one-night fling which resulted in the child being born, and him having to
maintain the child.
[30] Under cross -examination Mr L[...] was taken through the bank statements where
he was directed to various entries which reflected that:
30.1 he made payments to his mistr ess with whom he had the child;
30.2 it was also pointed out to him that entries did not reflect that he made any
contributions to L[...]. He confirmed that the monies paid to his mistress
was in order to maintain his child;
30.3 it was also put to him that Mrs L[...] was not aware of these expenses,
particularly the payment of maintenance in respect of the child at the time;
30.4 he could further not deny that the pension fund was not used for the
benefit of the joint estate. He simply explained that he used it in order to
improve his parental home;
30.5 he also did not deny that he abandoned Mrs L[...] in 2014 when he left
their home in Lebowakgomo ;
30.6 he was unable to proffer a probable explanation when it was put to him
that Mrs L[...] was unaware that he had received his pension funds upon
his resignation ;
30.7 with regard to the use of the motor vehicles he also did not deny that she
was not allowed to use the motor vehicles.
[31] Further under cross -examination it was put to him that there was substantial
misconduct on his part in that:
31.1 he abandoned Mrs L[...] in 2014;
31.2 he commenced a relationship with another woman shortly after his
marriage and had a child with her;
31.3 he abused Mrs L[...] financially and emotionally; and
31.4 Mrs L[...] was humiliated by him, particularly by having to remain in his
parental home and support his entire family whilst he selfishly went on
with his life and started another family in Gauteng.
31.5 he handled his finances recklessly. He had taken out a loan with Capitec
Bank in an amount of R148 000, without Mrs L[...]’s knowledge. He also
went under debt review in 2016, again without Mrs L[...]’s knowledge and
consent.
[32] In considering whether Mrs L[...] can succeed in her forfeiture clam, the enquiry
that must follow - is whether the party against whom forfeiture is sought, will, in
relation to the other, be unduly benefitted if the order is not made. This is a 2-
stage enquiry:
32.1 the first step is to determine whether or not the party against whom the
order is sought will, in fact, be benefitted. This is a factual enquiry;
32.2 the second step is whether or not that party will in relation to the other be
unduly benefitted if a forfeiture order is not made (this is a value
judgment).8
[33] The factors which have to be considered are the duration of the marriage, the
circumstances which gave rise to the breakdow n thereof and any substantial
misconduct on the part of either of the parties.
8 Wijker v Wijker 1993(3) SA 720A page 727
[34] On the factual enquiry, the undisputed facts portray :
34.1 the parties purchased the immovable property for an amount of
R495,000.00, which has been bonded in favour of Nedbank. The market
value of the property was R570,000.00 and the outstanding bond
R321,771.00. The benefit thus being R248,229.00 ;
34.2 the property was purchased after the parties’ separation in 2014;
34.3 Mrs L[...] was solely responsible for the bond and all related expenses in
respect of the property;
34.4 Mr L[...] had not contributed towards the property. Even if one were to
accept his version that he paid the life policy , it became evident that the
monthly payments are minimal ;
34.5 Mr L[...]’s pension was paid in July 2015. The benefit amounted to
R432,000.00;
34.6 he dissipated his pension benefit without informing Mrs L[...] of the payout.
His pension funds were most definitely not utilized towards the joint estate.
[35] In respect to the first stage of the enquiry it is evident that, Mr L[...] would unduly
benefit from the marriage in an estimated amount of over R1.2 million.
THE DURATION OF THE MARRIAGE
[36] In considering the factors outlined in Section 9(1) of the Divorce Act, it is
common cause that the marriage lasted 14 years . Most years were unhappy, and
the parties separated in 2014. For the first several years of their marriage they
did not even live together as Mrs L[...] moved in with her in-laws.
[37] The factors that gave rise to the breakdown of the marriage were also elaborated
upon . Mrs L[...] testified that they had a blissful marriage for the first few years.
The breakdown was caused mainly due to Mr L[...] becoming involved in the long
extramarital relationship. In the time that he was forging a relationship with his
mistress and starting another family, she was left to fend for hersel f and her
daughter, and more so burdened to maintain his family members. Most of her
earnings was utilized towards the household expenses. Mr L[...] was unable to
show this court that he was supporting Mrs L[...] financially and emotionally
during the duration of their marriage .
[38] Mrs L[...] was given no respect in the marriage. He had the audacity to bring the
child born out of wedlock to his parents’ home. No consideration was given to
Mrs L[...]’s feelings. She was expected to accept his relationship with his
mistress and child. He did not care about her emotional wellbeing when he
openly continued with his extra -marital relationship and disappea red on
weekends to be with his other family .
[39] He attempted to water down his wrongdoing by claiming that the relationship with
the mistress was intended to be a nightstand . His version is highly improbable.
Since evidence reflected that he paid regular maintenance for the child and
visited them regularly.
[40] Furthermore the manner in which he acquired the various motor vehicles and
manipulated Mrs L[...] to sign for them when they are being purchased
contributed towards the breakdown of the marriage. He accorded her no
respect. She was not even allowed to use the motor vehicles. It also remains
undisputed that she had to pay for the petrol when she was traveling with Mr
L[...].
[41] Substantial misconduct includes conduct where a prolonged extra -marital affair in
existence or even when a party irresponsibly diminishes the patrimony of the joint
estate9. On the evidence before me Mr L[...] was not only involved in a
prolonged extra -marital affair, but he disposed of his assets and spent his income
without giving consideration to the interests of the joint estate and further did so
without Mrs L[...]’s knowledge .
CONCLUSION
[42] Mrs L[...] satisfied the requirements of Section 9(1) of the Divorce Act. Mr L[...]
would unduly benefit if the forfeiture order is not granted. In the premises, Mrs
L[...] will be prejudiced if the forfeiture order is not granted. Mrs L[...] succeed s in
her counterclaim. The partial forfeiture order is thus granted.
COSTS
[43] The issue of determining costs are in the discretion of the court. I find that the
costs should follow the result as Mr L[...] is unsuccessful in the forfeiture dispute,
he should bear the costs.
_____________________________
H. KOOVERJIE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances :
9 Mashola v Mashola (022/2022)[ 2023] ZASCA TS (26 May 2023
B.LST v MSM (33568/20) [2023] ZAPPHC1125 (14 September 2023)
Counsel for the first plaintiff : Adv. Miller Moela
Instructed by: Jegeh Attorneys
Counsel for the defendant: Ms De Klerk
Instructed by: DDKK Attorneys Inc
Date heard: 25-26 November 2024 & 11 March 2025
Date of Judgment: 27 March 2025