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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: HCA 08/2023
COURT A QUO : LP/LEP/RC -61/2020
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 14 July 2025
SIGNATURE:
In the matter between:
P[...] M[...] J[...] Appellant
And
P[...] P[...] M[...] [NEE M[...] ] Respondent
Delivered : This judgment is handed down electronically by circulation to the parties
through their legal representatives' email addresses. The date for the hand -down is
deemed to be 14 July 2025.
JUDGMENT
Makoti AJ
Introduction
[1] This is an unopposed appeal against the orders granted by the Divorce Court
sitting in the Regional Magistrate Court, Lephalale (the Court a quo ). It was
previously postponed a t the instance of the Respondent, on 23 February 2024.
Despite that, she was not present [personally or through representation] in Court
when the appeal was heard. The divorce between the parties was finalized at the
Court a quo for the district of Lephala le under case numbers LP/LEP/RC61/2020.
[2] After seven years of marriage the Appellant and the Respondent encountered
difficult times which led to its dissolution through divorce. The parties participated in
the divorce action and after considering their respective sides, the Magistrate
granted the orders which the Appellant seeks to have set aside in this appeal.
[3] For the sake of completeness, it is common cause that the parties were
married on 02 July 2013 and their relationship culminated in the di vorce following
action proceedings that were instituted by the Appellant on 10 June 2020.
The orders granted by the Divorce Court
[4] When the matter was decided before the Magistrate's Court the following
orders, amongst others were made:
[4.1] Decree of divorce;
[4.2] Division of the joint estate; and
[4.3] That the Defendant was entitled to 50% of the Plaintiffs' pension interest
as at the date of divorce.
[4.4] The Court also gave primary care and residence of the parties' minor
children to the Respondent.
[5] The Appellant raised no issue with the order for decree of divorce but is
aggrieved by the balance of the orders.
The Appel lant's grounds of appeal
[6] I paraphrase the grounds of appeal noted by the Appellant which are the
following:
[6.1] That the Court a quo erred in its order granting the Respondent 50% of
his member's interest in the Government Employee Pension Fund, up to the
date of divorce.
[6.2] Further, that the Court below erred in its finding or conclusion that the
duration of the parties' marriage, which was over six years at the date when
the divorce action was instituted. He contends that the marriage had a sho rt
life span and that the Court ought to have concluded so.
[6.3] Though there are other grounds listed, they are merely intended to
support the notion that the Respondent ought to have been ordered to forfeit
the benefits arising out of the marriage in co mmunity of property.
[7] The Appellant contends that the correct order ought to have been one of
forfeiture of benefits arising out of their marriage in community of property. Not just
that, but also that the Respondent ought to have been denied a share of his pension
benefits. And finally, he contends that he was entitled to be given the rights of care
and residency with their minor children.
Brief summary of facts
[8] I have already indicated that the parties were married on 2 July 2013, and in
community of property. During the existence of their marriage the parties owed
reciprocal obligations to each other and had a combined responsibility to build a
household for themselves and their children. They were blessed with 2 minor
children who were b orn on 12 October 2013 and 26 November 2017, respectively.
Due to the children's age of minority, I do not record their names in this judgment, to
preserve their privacy. The circumstances of the children were at the time of trial the
following:
[8.1] Evi dence adduced at the hearing of the divorce was that the parties'
daughter T[...] is in boarding school since 2020. The Respondent was
accused of taking the decision without consulting the Appellant, which she
denied. She added, when denying the accusation , that she also had to
consider the child's best interest by removing her out of what was already a
tense situation.
[8.2] The younger child was, at the time in question [2020], yet to reach three
years in age. On his evidence the child was attending day c are during the day.
He prayed for guardianship, daily care and that the primary residence of the
children be granted to him.
[9] Further, on the evidence adduced at the trial it emerged that the parties'
matrimonial relationship, or cohabitation, started after the payment of lobola on 16
December 2011 and before they sealed their civil union. They started staying
together as husband and wife after payment of lobola.
[10] Both were gainfully employed, though the Appellant was earning higher
remuneration than the Respondent. Amongst other acquisitions they purchased a
house to make a home for themselves. According to the Appellant th ey had agreed
when purchasing the property that they were both going to contribute towards the
bond repayments and for the property upkeep. Before they purchased the property,
they had agreed to put savings to pay deposit for the house.
[11] About the use of the savings he was asked if he used the money to erect a
tombstone for his farther who had passed in November 2023, and his answer was:
"Not the whole amount, the portion of that money in contributed. It was
myself and my sister who had contributed to buy groceries and the
drinks for the upbringing of the tombstone."
[12] Even though they had agreed after their marriage to put savings together, as I
will show later in this judgment, the Appellant alleged in the divorce summons that
the Respondent fail ed to make contributions into their joint estate. However, as it
emerged at the trial, this was incorrect. They both contributed to the savings.
[13] During or about 1 0 June 2020 the Appellant instituted divorce action to
dissolve the marriage. By then th e parties had been married for about seven years.
The cause of the breakdown of the marriage, he alleged, included the following:
[13.1] that he was subjected to emotional and financial abuse by the
Respondent;
[13.2] that they had irreconcilable differen ces; and
[13.3] that, as a result, they have lost all love and respect for each other.
[14] Concerning the devolution of the joint estate, the Appellant claimed forfeiture
of benefits arising out of the marriage, alleging inter alia that the Respondent ha d not
contributed to their common household. He pleaded that the Respondent failed to
maintain their children and that she used her income only for herself.
[15] The Respondent denied the allegations of substantial misconduct. While also
seeking decree of divorce, she opposed the orders for forfeiture of benefits arising
out of the marriage in community of property including forfeiture of the Appellant's
pension benefits.
[16] During Court proceedings the Appellant also testified amongst others that:
"T[...] , I was paying her school fees up until she removed her without
consulting with me after the schools closed for festive [ …]. The only
child she was paying for day care is K[...] . I think it was around R700 or
R800 if I am not mistaken, she can confi rm that [ ...]"
[17] This creates a difficulty for me to understand the Appellant's contention that
the Respondent used he income for herself and did not maintain the children, or
contribute to the joint estate. It is not necessary to deal more with what came out of
the trial at this stage.
The law on forfeiture of benefits from marriage in community of property
[18] Parties entering int o a civil marriage have a choice to conclude it in one of two
ways. They may conclude it in community of property or out of community of
property, with or without accrual system. In a marriage in community of property the
spouses' assets are combined to fo rm one common estate. That is the system that
was chosen by the parties in this appeal case. From the date of marriage they
shared profits and losses is equal share.
[19] A claim for forfeiture of benefits arising from a marriage in community of
property is regulated in statute. The law grants the Court discretionary powers to
decide whether forfeiture is to be granted or not. At section 9 of the Divorce Act1 the
following is provided:
"(1) When a decree is granted on the ground of irretrievably breakdow n
of the marriage, the court may make an order that the patrimonial
benefits of the marriage be 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 ga ve rise to the breakdown thereof
or any substantial misconduct on the part of either of the parties, is
satisfied that, if the order of forfeiture is not made, the one party will in
relation to the other be unduly benefited."
[20] For a Court granting dec ree of divorce to grant forfeiture, as the statute
provides, it must be satisfied that its refusal to grant such order will lead to one of the
parties being unduly benefitted. To arrive at such conclusion the Court takes into
account the duration of the ma rriage and the conduct of the parties during marriage.
It engages with the question whether there had been substantial misconduct by
either of the parties.
1 Act No. 70 of 1979.
[21] What the Appellant contends to be constituting substantial misconduct is the
fact that the Res pondent removed the children from the matrimonial home when she
left it. And that she did this without his consent. According to him, she did this
unlawfully and out of bitterness, without giving due regard to the children's views.
[22] The Appellant placed reliance on section 31(2)(a) and (b) of the Children's
Act2 to support the contention that the Respondent committed substantial
misconduct. He also sought to support his contention on the fact that their child
"T[...]" had informed the Family Advocate that it was nice to reside with both of them.
I am not certain how these allegations, even if true, amount to substantial
misconduct.
[23] In Engelbrecht v Engelbrecht3 (Engelbrecht) the Court explained amongst
others that:
"the cou rt has the discretion when granting a divorce on the grounds of
irretrievably breakdown of the marriage or civil union to order that the
patrimonial benefits of the marriage or civil union be forfeited by one
party in favour of the other. The court may ord er forfeiture only if it is
satisfied that the one party will, in relation to the other, be unduly
benefited. The court has a wide discretion, and it may order forfeiture in
respect of the whole or part only of the benefits".
[24] Though the Court is endo wed with a wide discretion, according to Engelbrecht ,
it may not exercise it to order forfeiture unless it is satisfied that one of the parties will
be unduly benefited if forfeiture is not granted. Only those factors listed in the
legislative provision ma y be taken into consideration when the Court decides on the
question of forfeiture.4 In this case the Court a quo did not find that there was
substantial misconduct as it was alleged by the Appellant.
2 Act No. 38 of 2005.
3 1989 (1) SA 597 (C).
4 Botha v Botha 2006 (4) SA 144 (SCA).
[25] The alleged failure to contribute towards the upk eep of their estate talks to
lack of management of the household by one or both parties. It does not in my view
constitute substantial misconduct as contemplated in the statutory provision. It is trite
that onus rests on the party seeking forfeiture to demonstrate that in the event an
order of forfeiture is not granted th e party against whom the order is sought will, in
relation to the other, be unduly benefited if the order is not made.5
[26] Decoding the question whether proof of substantial misconduct was an
essential requirement the Court in Wijker v Wijker6 held the following:
"it is obvious from the wording of the section that the first step is to
determine whether or not the party against whom the order is sought
will in fact be benefited. That will be purely be a factual issue. Once that
has been established the t rial court must determine, having regard to
the factors mentioned in the section, whether or not that party will in
relation to the other be unduly benefited if a forfeiture order is not in
made. Although the second determination is a value judgment, it is
made by that court after having considered the facts falling the compass
of the three factors mentioned in the section." (Emphasis added)
[27] What comes out of the above authority is that, even where substantial
misconduct is found to exist, the Court w ould still be required to determine whether
or not the party against whom a forfeiture order is sought would be unduly benefited
if the order is not granted. If the answer is yes, then the Court may exercise its wide
discretion to grant or to refuse to gra nt the sought forfeiture order. This is because
the existence of substantial misconduct is not, on its own, a ground to justify an order
for forfeiture.7
[28] In this case the Magistrate did not find substantial misconduct. It is difficult to
fault the fi nding, more so due to the fact that what the Appellant complained about
5 Engelbrecht, supra .
6 1993 (4) SA 720 (A) at 727 D -F.
7 JW v SW 2011 (1) SA 454 GNP.
was the failure of the Respondent to contribute to the upkeep of the household. It
should be recalled that on the Appellant's own version the Respondent had
contributed to the joint es tate. Above I mentioned two instances of such contributions,
which information came out the Appellant's own mouth.
[29] It is significant for me that the Appellant e ven used savings of the joint estate,
which were intended as deposit to purchase a house to erect a tombstone for his late
father. I do not suggest that it was wrong. to erect a tombstone, but the parties had
to agree to employ the savings for that purpose . This claim for substantial
misconduct cannot succeed.
Whether the marriage was for a short span or duration
[30] Persons when entering into a marriage in community of property create
universal economic partnership.8 They bring assets that they may have into it and
upon so doing the assets belong to their joint estate, including future assets. For the
period that I have already mentioned, the parties have lived together as husband and
wife for just under seven years before the Appellant filed for divorce in June 2020.
[31] One the established facts they did not get married as soon as they first met,
having exchanged lobola on 16 December 2011. Upon the payment of lobola the
Appellant himself told the Court a quo that they started staying together as husb and
and wife in 2012. Thus before they agreed to marry by western rights, they with the
intention of solidifying their union exercised an important choice to formally marry
and elected community of property as their marital regime.
[33] The period of more than a year in which they lived together prior to concluding
a civil marriage is noteworthy. In Soupionas v Soupionas9 it was held that:
"if people, after finding solace and satisfaction in each other 's physical
company for a period of years, decide to marry, the legal consequences
of marriage must be an important motivating factor for that contract of
8 KT v MR 2017 (1) SA 97 (GP).
9 1983 (3) SA 757 (T).
marriage and, consequently, all the material consequences of that
marriage must have been thoroughly contemplated between the parties
and it would be sound public policy to enforce such contractual views of
the parties against each other."
[34] What this entails is that the consequences of the parties' decision to marry in
community of property should be respected. This is because they entered into the
marriage with full consciousness and intentionality, to conclude a union of profit and
loss. In Klerck v Klerck ,10 the Court affirmed the proposition that the longer the
duration of the marriage, the less l ikely it would be for a forfeiture order to be justified,
quite possibly as both parties would have contributed to the joint estate over time.
[35] From 2012 they were living together. One may argue that they were already
married by then. I do not advance this further. What I consider to be important is that,
if one takes into account that they have been together living as husband and wife
even before they concluded their civil union, it can hardly be argued that their
marriage was so short -lived as to war rant forfeiture of matrimonial benefits. In fact,
by living together after payment of lobola shows that the respondent had been
handed over to the appellant's family which satisfy the conclusion of a valid
customary union. The effect of the customary union is marriage in community of
property. When they got married by civil rites they were merely changing their
matrimonial regime. I am unpersuaded, least not on the authorities relied upon by
the Appellant, t hat the duration of the marriage was so short as to warrant an order
for forfeiture of matrimonial benefits.
[36] I am minded to mention the case of Tlou v Ralebipi11 which was also relied
upon by the Appellant. There the marriage had been for a very shor t period of less
than two years when it collapsed. A period of twenty one (21) months is factually
incomparable with the total span of the marriage in this case, which, discounting the
period of lobola, endured for six years and eleven months. The notion t hat the
Appellant made larger contributions cannot sway the Court as he conceded to the
fact that he was earning significantly higher remuneration than the Respondent. It
10 1991 (1) SA 265 (W).
11 2017 (1) SA 97 (GP).
was expected that his contributions would be proportionally higher than those of the
Respondent.
[37] After all, whether forfeiture is to be granted is not merely a numbers game. It
is justified only when one party, against whom forfeiture is sought, will be unduly
benefitted by the refusal to grant such order, that the Court would grant forfeiture.
The parties in this case had made a conscientious choice to marry in community of
property, and to share the profits and losses arising out of their marital regime. As a
result, and on this ground too, the forfeiture claimed by the Appellant mu st fail.
[38] I earlier alluded that the Respondent was not in attendance to oppose the
appeal. Thus, even though the appeal fails, the Respondent is not entitled to the
costs. The application was initially set down for hearing on 23 February 2024. I do
not have any information on whether it was postponed simply by agreement between
the parties or whether an order of Court was granted to that effect. As a result, I am
unable to make any determination of costs with regard to that date.
Court's order
[39] The following order is made:
[i] The appeal is dismissed with no order as to costs.
M. Z. MAKOTI
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
I AGREE
F KGANYAGO
JUDGE OF THE HIGHCOURT OF SOUTH AFRICA
LIMPOPO D IVISION, POLOKWANE
JUDGMENT RESERVED : 21 FEBRUARY 2025
JUDGEMENT DELIVERD : 14 JULY 2025
APPEARANCES:
FOR APPLICANT : MR MJ MOTHIBA
MJ MOTHIBA ATTORNEYS
POLOKWANE
FOR FIRST RESPONDENT : NO APPEARANCE