SAFLII Note: Certain pers onal/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, JOHANNESBURG .

Case Number: 2023- 118970

In the matter between:
In the matter between:
M[…] P[…] M […] Applicant
And
T[…] R[…] T[…] First Respondent
GOVERNMENT EMPLOYEE PENSION FUND Second Respondent


JUDGMENT


NOKO J
Introduction (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : NO
SIGNATURE DATE: 25 March 2025.


2

[1] The applicant brought an urgent application for an inter im interdict
restraining the second respondent from paying out 50% of the first respondent ’s
pension benefit pending the finalisation of the divorce action between the applicant and first respondent.
[2] The respondent is opposing the application and dispute s that the applicant
has made out a case for urgency and that the requirement s for interim interdict
were met.
Parties
[3] The applicant is M […] P[…] M[…], an adult female resident at 4 […] M[…]
Street, W […], Johannesburg.
[4] The first respondent is T[…] R[…] T[…], an adult male resident at 4 […]
M[…] Street, W […], Johannesburg.

[5] The second Respondent is the Government Employees. Pension fund
(GPEF) , a pension fund established in terms of Section 3 of the Government
Service Pension Act 57 of 1973, subject to the provisions of the Government
Employees Pension Law in 1996, with its head office at 34. Hamilton St reer,
Pretoria.
Background [6] The factual background is uncomplicated and is set out as follows . The
applicant and the first respondent were married to each other in community of property which marriage still subsists. The first responden t instituted divorce
proceedings on 14 November 2023 which are pending. There are three minor
children born of the marriage whose details are not relevant for the purposes of this judgment.



3
[7] The applicant was informed that the first respondent was dismissed on 20
February 2025 and was further informed by her attorneys that the second
respondent may pay the pension benefits anytime.

Urgency
[8] The applicant submit s that the reasons underpinning the approach to
Court on urgent basis is inf ormed by the advice she received from her attorneys
that since the first responden t has been dismissed there would be no hurdle that
would hinder the second respondent to process payment of the pension benefit
to the first respondent unless the court issue an interdict.
[9] The applicant contended that if the normal process is undertaken there is
a greater chance that the application may be adjudicated in 2026 and at that time it would be late for her to obtain an equitable redress. In addition, there is no prejudice which can visit the first respondent for the said fun ds being stayed
pending the finalisation of the divorce.

[10] The applicant was notif ied that the financial circumstances of the first
respondent has taken a knock and has reneged on his previous undertaking to
increase maintenance for the children. Though he has made another undertaking
that he would not cash on the pension pay outs it would be foolhardy to take his
word just after he reneged on 24 Februa ry 2025 from paying extra for his own
children.
[11] The respondent contends that the urgency in this matter is self -created as
the applicant’s attorneys have since made it know n to the first respondent’s
attorneys in November 2024 that an urgent application will be instituted. There is
no explanation why same was not instituted then. There were extremely
truncated dies prescribed by the applicant which made the first respondent to
prepare the opposition under severely curtailed circumstan ces which was not
warranted and amount to abuse which the court should not countenance.



4
[12] I had regard to submissions made by both parties and am persuaded that
there was no evidence that urgency was self -created. The changed
circumstances were conv eyed to the applicant on 24 February 2025 and these
proceedings were launched soon thereafter on 4 March 2025. The date of
November 2024 becomes irrelevant under these circumstances . The applicant
satisfied the principles elucidated in the locus classicus in East Rock Trading1
that a party must set out succinctly the basis for urgency as the process set out in
rule 6(12)(a) of the Uniform Rules of Court is not just there for asking. Further that a party should most importantly set out the reasons why the applicant cannot be afforded substantial redress at a hearing in due course. I therefor conclude
that this matter deserves of the attention of the urgent Court.
Interdict
[13] The applicant asserts that by virtue of marriage in community of property
she has a right to 50% of the assets of the parties . Further that since the p ension
benefits are part of the assets as set out in section 7( 7) of the Divorce Act
2, she
has clear right to at least 50% there of.
[14] The applicant avers that she harbour s a reasonable apprehension that the
first respondent may withdraw the pension pay out since his dismissal which
appears to have been unceremonious. The first respondent has instructed his
attorneys to renege on the undertaking he made that maintenance amount would
be increased and this was communicated to the applicant’s attorneys on 24
February 2024.

[15] The respondent contends that the averments set out in this paragraph are
unfounded as undertaking requested by the applicant’s attorneys in November 2024 was given which was to the effect that the assets of the parties would not
be dissipated. The assurance was also made again in February 2025 through

1 East Rock Trading 7 Pty Ltd and Others v Eagle Valley Granite and Others (11/33767)[2011]
ZAGPJHC 196 (23 September 2011).
2 Act 70 of 1979.


5
exchanges from attorneys of both parties that assets would remain safe.
Launching these proceedings despite that assurance is an abuse and should be
frowned upon by the C ourt.
[16] The applicant further contends that there is no prejudice which will visit the
first respondent as the remainder of the pension benefits can be processed in his
favour. In addition, the 50% which is the subject of this application would not be
spent by the applicant and the first respondent may in the long run benefit therefrom if a proper case is made. In view hereof the applicant submit that the balance of convenience is in her favour for the purposes of obtaining an interim order.
[17] There has been a concerted effort by the firs t respondent , argued the
applicant, to delay the finalisation of the divorce and if the assets are not
preserved there would be no assets to share at the end of the divorce which
could possibly be in two years from the date of launching of the urgent
application. The fact that the first respo nden t has lost employment weigh in
favour of the applicant that if she awai t launching civil action for damages against
a party who is unemployment the order may not be worth the paper . Worse the
prospects of employment in his situation are weakened by the bleak record
predicating his dismissal.
Issues
[18] The issue for determination is whether the applicant has made out a case
for an interim interdict.
Legal principle and anal ysis
[19] The principles underlying application for interdicts both final and interim
were laid down many decades ago. For the final interdict is Setlogelo
3 and for the

3 Setlogelo v Setlogelo 1914 AD 227.


6
interim interdict requirements are laid out in Webster .4 The critical distinction
between the two is that in the latter a litigant need only show a prima facie right
even if it is open to some doubt whereas in the former one has to prove a clear
right. In addition, there is extra requirement for the balance of convenience where
a litigant seeks an interim interdict.

[20] The reason underpinning my decision to highlight the distinction is
motivated by the way the applicant crafted her papers. The notice of motion
states that the applicant seeks “An order interdicting the Sec ond Respondent
from paying out 50% of the First Responden t’s pension benefit in the Second
Respondent to him pending the finalisation of the divorce action between the
Applicant and First Respondent ”.5 In sync with the notice of motion the applicant
in her founding affidavit at para 4.2 refer to an interim order.6 On the other hand,
paragraph 97of the applicant’s founding affidavit refers to final interdict and listed
the three requirements in para 9.2.1. instead of four requirements r equired in
interim applications.8
[21] That notwithstanding, the applicant made reference to the fourth
requirement of the interim interdict in para 11.2 that “… it is submitted that the
balance of convenience is in favour of the Applicant for the relief sought in an
event that Court is of the view that the requirement for final interdict are not established.”
9 It would be absurd for the court to find itself bound by an
interpretation which may end up with injustice or even absurdity on the basis that
the Court should only see issues as labelled or char acterised by the litigants. If a
final interdict is granted it would be mean that the 50% would never be accessed even after the divorce except with another court order. This is not what was
intended by the parties. If the facts and evidence presented before court justify the conclusion of an interim interdict the court should grant same despite the

4 Webster v Mitchel 1948 (1) SA 1186 (W)
5 See prayer 2 of the Applicant’s Notice of Motion at CL 25-3.
6 See Applicant’s Founding Affidavit at CL 25-8.
7 Id at CL 25- 12.
8 Id at CL 25- 13.
9 Id at CL 25- 14.


7
declared but confusing wish es of a litigant . The Court should be able conclude on
the interpretation of the correct legal principle without finding itself being
paralysed by having to adhere to the litigant ’s incorrect or mistaken reading of
legal principles.

[22] The respondent repeated the averments that he would not go back on his
promises that the assets would not be dissipated. It is difficult for one to take such undertaking serious since the respondent has recently withdrawn his undertaking to increase the m aintenance. The withdrawal make sense as he no
longer has an income. The fact that he had to withdraw an undertaking he made
before is consistent with someone who is saying he has no other means of survival or to take care of the children. There is therefore no reason to believe that the respondent may not go back on his words. This would not be the first
time.
[23] The respondent has further failed to demonstrate any prejudice which will
visit him if the said 50% is frozen. In any event this has the same consequence
with his undertaking but with force. It is mindboggling where the respondent
summoned t he energy and financial muscle to oppose the application if the
essence of the order being sought i s in sync with his undertaking. The fact that
he is able to provide funding to oppose the urgent application but have no money for the maintenance should say a lot about his intentions. This conduct lend credence to the suspicion that he may want to cash the pensions and benefit therefrom to the exclusion of the applicant.
[24] In the premises the opposition was ill -advised and unsustainable.
Costs
[25] The question of costs is within the discretion of the court. It was held in
Bam
10 that “[T]he general rule relating to the costs is that costs follow the result.

10 Bam v Holtzhausen and Others (2024/097438) [2025] ZAGPPHC (21 February 2025).


8
Re-imbursing a successful party of his or her out of pocket expenses is a settled
principle which brooks no further ventilation. ” The applicant has asked for costs
at punitive scale . Ordinarily such order is warranted in exceptional
circumstances where conduct of the litigant attract the wrath of the court. The
Constitutional Court held in Mkhatshwa11 “… that the purposes of punitive costs,
being an extraordinarily rare award, are to minimise the extent to which the successful litigant is out of pocket and to indicate the court’s extreme opprobrium and disapproval of a party’s conduct. ”
12 The opposition by the first respondent
was vexatious and frivolous . The costs at punitive scale is justified .

Order

[26] In the premises I make the following order:
1. The applicant’s non- compliance with the Rules is condoned and the
matter to be heard as one of urgency in terms of Rules 6(12) of the Uniform Rules of Court.
2. The second respondent is interdicted from paying out 50% of the
First Res pondent’s pension benefit pending the finalisation of the divorce
action between the applicant and the First Respondent .
3. The first respondent is ordered to pay the costs of the application
on a scale between attorney and client .

M V NOKO
Judge of the High Court
Gauteng Division, Johannesburg
DISCLAMER: This judgment was prepared and authored by Judge Noko and is
handed down electronically by circulation to the Parties /their legal
representatives by email and by uploading it to the electronic file of this matter on
Case Lines. The date for hand- down is deemed to be 2 5 March 2025 .

11 Mkhatshwa and Others v Mkhatshwa and Others [2021] ZACC 15 .
12 Id at para 21.


9

Date s:
Hearing: 11 March 2025.
Judgment: 25 March 2025
Appearances:
For the Applicant : S M Nkabinde
Instructed by : Mary Jane Mphahlele Attorneys Inc.
For the First Respondent : TJ Loabile- Rantao
Instructed by: Thaga Attorneys .