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 NO: 110453/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 20/08/2025
SIGNATURE:
In the matter between:
P[...] M[...] M[...] Plaintiff
and
R[...] J[...] M[...] Defendant
This Judgment was handed down electronically and by circulation to the parties'
legal representatives by way of email and shall be uploaded on caselines. The date
for hand down is deemed to be on 20/08/2025.
JUDGMENT
MODISA AJ:
[1] This is an action for divorce proceedings wherein the Plaintiff seeks an order
for the forfeiture of matrimonial benefits inclusive of a degree of divorce as well as an
order for costs.
[2] The parties have entered into a customary marital relationship on 11
November 2013 and they are married for a period of 12 years.
[3] There are no minor children born out of the marriage between the parties.
[4] It is common cause that the parties did not stay together as husband and wife
but they visited each other due to their employment commitment.,
[5] They acquired an immovable property together through a joint bond which
property is situated at Orchards, Pretoria. According to the Plaintiff the Defendant left
during 2019 and never came back and was no longer visiting him as she used to visit
him according to their arrangements.
[6] There is a dispute about the party responsible for the breakdown of the
marital relationship as well as misconduct. I t is instructive that a Mr T[...] D[...] M[...]
came to testify on behalf of the Defendant in order to dispute the fact that she
became married to him whilst having an existing marital relationship with the Plaintiff.
[7] Mr D[...] testified that t he photographs depicted on item 01 -11 of Case Lines
was his own lobola ceremony and they were taken on 08 April 2023. He admits that
R[...] M[...] being the Defendant in casu is known to him and was present at his
lobola ceremonial event on 08 April 2023.
[8] Nothing turns on his evidence during cross -examination.
[9] The Defendant also called Mr H[...] B[...] M[...] who is the brother to the
Defendant.
[10] He testified that he resides at Mamelodi Mahube and that on 10 August 2019
which was a Saturda y he was present when the Plaintiff assaulted the Defendant.
Nothing turns on his cross -examination as to whether the door was closed or
whether it was pushed during the altercation since it was common cause that the
Plaintiff does not deny having being there on 10 August 2019.
[11] In instances where the Court is confronted with two mutually distractive
versions, the principle enunciated in the matter of Stellenbosch Farmers' Winery
Group Ltd and Another v Martell et Cie and Others 1 should be considered. T he
Court in Stellenbosch Winery held a follows:
"[5] On the central issue, as to what the parties actually decided, there are two
irreconcilable versions. So, too, on a number of peripheral areas of dispute
which may have a bearin g on the probabilities. The technique generally
employed by courts in resolving factual disputes of this nature may
conveniently be summarised as follows. To come to a conclusion on the
disputed issues a court must make findings on (a) the credibility of t he various
factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the
court's finding on the credibility of a particular witness will depend on its
impression about the veracity of the witness. That in turn will depend on a
variety of subsidiary factors, not necessarily in order of importance, such as (i)
the witness' candour and demeanour in the witness -box, (ii) his bias, latent
and blatant, (iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with established
fact or with his own extracurial statements or actions, (v) the probability or
improbability of particular aspects of his version, (vi) the calibre and cogency
of his performance compared to that of other w itnesses testifying about the
of his performance compared to that of other w itnesses testifying about the
same incident or events. As to (b), a witness' reliability will depend, apart from
the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities
1 2003 (1) SA 11 (SCA)
he had to experience or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this necessitates an
analysis and evaluation of the probability or improbability of each party's
version on each of the disputed issues. Jn the light of its assessment of (a), (b)
and (c) the court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging it. The hard
case, which will doubtless be the rare one, occurs when a court's credibility
findings compel it in one di rection and its evaluation of the general
probabilities in another. The more convincing the former, the less convincing
will be the latter. But when all factors are equipoised probabilities prevail."
[12] The evidence of Mr D[...] affects the credibility of the Plaintiff in so far as the
allegation to the fact that the Plaintiff entered into a marital relationship whilst being
married.
[13] The parties were married on 23 November 2013 and no children were born of
the marriage between the parties. However , the Defendant already had a child born
prior to marital relationship.
[14] After the conclusion of the marital relationship in terms of customary rites, the
parties did not live together as husband and wife. The Plaintiff was residing at his
parental ho me and sometimes at the residence of the Correctional Services
Department commonly known as the Barracks. The Defendant stayed at her parental
home. They visited each other during weekends, public holidays and when both of
them are not working.
[15] I will not deal with the question as to whether a valid customary marriage
came into being. I am satisfied that a valid customary marriage came into existence
irrespective of the fact that same was not registered in terms of the Recognition of
Customary Marriages Act 120 of 1998.
[16] I am not satisfied that there is sufficient evidence justifying an order of
[16] I am not satisfied that there is sufficient evidence justifying an order of
forfeiture of benefits or that the Defendant would unduly benefit from the marriage
relationship.
[17] In the matter of Wijker v Wijker2 the Court remarked as follows regardi ng the
issue of forfeiture:
"...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 a factual issue. Once that has been
established the trial 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 made. Although the second
determination is a value ju dgment, it is made by the trial Court after having
considered the facts falling within the compass of the three factors mentioned
in the section. When considering the approach that should be adopted on
appeal in such a matter, the remarks made by E M Gross kopf JA in Media
Workers Association of South Africa and Others v Press Corporation of South
Africa Ltd ('Perskor’) 1992 (4) SA 791 (A) at 80C-G in dealing with the manner
in which an appeal in an unfair labour practice dispute should be approached,
are equa lly applicable. To determine whether a party would be unduly
benefited a trial Court would certainly not be exercising a discretion in the
narrower sense. Here too no choice between permissible alternatives would
be involved. In c onsidering the appeal the Appeal Court would therefore not
be limited by the principles set out in Ex parte Neethling and Others 1951 (4)
SA 331 (A) at 335D-E and it may differ from the Court a quo on the merits. It
is only after the Court has concluded th at a party would be unduly benefited
that it is empowered to order a forfeiture of benefits, and in making this
decision it exercises a discretion in the narrower sense. It is difficult to
visualise circumstances where a Court would then decide not to gran t a
forfeiture order."
[18] I am of the view that the Plaintiff also failed to prove any substantial
[18] I am of the view that the Plaintiff also failed to prove any substantial
misconduct on the part of the Defendant. Instead, the evidence of Mr D[...] and Mr
M[...] proves otherwise.
2 1993 (4) SA 720(A)
[19] It is clear from the evidence of Mr D[...] that the Defendant is not married to
any other person during the subsistence of the customary marriage in issue. It is also
clear from the evidence of Mr M[...] that the Plaintiff assaulted the Defendant.
[20] In the circumstances I am of the view that the Plaintiff is solely responsible for
the irretrievable breakdown of the marriage between the parties. He assaulted her
and made false accusations against her in that she was entered into another marital
relationship during the subsistence of their marriage.
[21] The Plaintiff failed to call any witnesses to corroborate his version whilst the
Defendant was able to call two witnesses to corroborate her version.
[22] The Defendant left the common home fearing for her life during 2019
[23] In so far as the issue of costs is concerned, I invoke the provisions of section
10 of the Divorce Act, which provides as follows:
"10 Costs
In a divorce action the court shall not be bound to make an order for costs in
favour of the successful party, but the court may, having regard to the means
of the parties, and their conduct in so far as it may be relevant, make such
order as it considers just, and the court may order that the costs of the
proceedings be apportioned between the parties."
[24] I see no reason as to why either of the parties should be mulcted with costs.
[25] In the premises I make the following order:
1. The degree of divorce is issued.
2. Division of the joint estate.
3. The Plaintiff's claim for forfeiture of matrimonial benefits is dismissed
4. The Defendant is entitled to 50% of the pension fund benefits of the
Plaintiff.
5. Each party to pay his or her own costs
MODISA AJ
ACTING JUDGE OF THE HIGH COURT
DATE OF HEARING : 03 JUNE 2025 AND 06 JUNE 2025
DATE OF JUDGMENT: 19 AUGUST 2025
APPEARANCES
ON BEHALF OF THE PLAINTIFF: ADV M.M SONO
INSTRUCTED BY: DIKOLOBE ATTORNEYS INC
ON BEHALF OF THE DEFENDANT: ADV J BRENKMAN
INSTRUCTED BY: MACHOBANE KRIEL INC