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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
APPEAL CASE NO: HCA 15/2024
CASE NO: LP/PLK/RC201/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 09/09/2025
SIGNATURE:
In the matter between:
I[...] C[...] T[...] M[...] Appellant
(Born: R[...])
And
T[...] P[...] M[...] Respondent
Delivered: This judgment is handed down electronically by circulation to the parties
through their legal representativ es' email addresses. The date for the hand -down is
deemed to be 09 SEPTEMBER 2025.
Coram: Kganyago J et Makoti AJ
JUDGMENT
Makoti AJ
Introduction
[1] A marriage in community of property was concluded between the parties. It
has come to the point of dissolution through divorce. At issue in this appeal is the
question of forfeiture of benefits arising from the marriage in community of property.
Added to that, the Appellant takes issue with the cost order that was granted against
her.
[2] The Appellant is the Defendant in the divorce proceedings that were instituted
by the Respondent on 08 May 2023. Before divorce action was initiated the parties
had s pent eighteen (18) months together as a married couple. Before the Court a
quo the Appellant had sought, amongst other orders, that the Respondent be
ordered to forfeit the matrimonial benefits arising out of their marriage in community
of property. That r elief was not granted by the Regional Court Polokwane (the Court
a quo). As I indicated, the Court granted absolution from the instance.
[3] Upon hearing evidence the Court a quo granted absolution from the instance
at the close of the Appellant's case. S he was then ordered to pay the costs
occasioned thereby. These are essentially the orders that the Appellant is aggrieved
by and which she seeks to have set aside. She has raised a number of other
grounds for this appeal, which I shall take a moment to deal with below.
Grounds of appeal
[4] The main ground of appeal deals with the order for absolution and costs. To
this effect the Appellant contends that the Magistrate erred in granting absolution
from the instance in respect of the Appellant's partial forfeiture claim. Connected to
that, as indicated, she contends that the Court a quo erred in ordering the Appellant
to pay the costs without having heard all the evidence and without applying its mind
holistically.
[5] Regarding the remaining grounds o f appeal deal, the Appellant deals with
how the Magistrate failed to properly treat the evidence that was adduced by the
parties. The grounds of appeal include the following:
[5.1] That the Magistrate erred in not giving due regard to the fact that the
Respondent entered into a credit agreement to purchase a motor vehicle, a
Jaguar, without the Appellant's consent;
[5.2] That the Magistrate erred in not giving due regard to the fact that the
Respondent would be unduly benefited if partial forfeiture is not granted;
[5.3] That the Magistrate erred in not giving due regard to the fact that, while
the Respondent was earning a net salary of R45 567 -00 per month, with the
Appellant earning a lesser amount of R33 161 -00, the Respondent failed to
contribute proportionately to the joint household;
[5.4] That the Magistrate erred in finding that the Appellant backtracked under
cross examination;
[5.5] That the Magistrate erred in finding that the Appellant did not testify
about the alleged misappropriation of funds belonging to the joint household;
and
[5.6] That the Magistrate erred in not giving due weight to the Appellant's
evidence that she was unable to gather from the Respondent's banking
statement how the funds had been used.
[6] The appeal and the grounds thereof are opposed by the Respondent.
Amongst others, it is the Respondent's contention that an order for absolution from
the instance is not appealable. If correct, this point could be dispositive of the appeal.
Background facts
[7] The parties reside in Polokwane, albeit at different addresses. They both want
decree of divorce. Respondent wanted division of the joint matrimonial e state while
the Appellant prayed for a forfeiture order to be granted in her favour. In cases for
forfeiture of benefits arising from a marriage in community of property the party
asking for such order bears the onus of proof. That was the case even in this matter.
[8] It is common cause that the parties were married to each other on 18 January
2022 in Polokwane. As indicated, they chose community of property as the regime to
govern their marriage. They do not have any children together. The pleaded ground s
for the divorce included that they do not share common interests and that they have
no proper communication between them. Also that since 18 March 2023 the parties
have been living separately.
[9] Apparent from their respective pleadings is that they b oth wanted a decree of
divorce to be granted. It was in respect of what happens to their joint estate that they
parted company. That is, while the Respondent, as Plaintiff a qu o, prayed for the
division of their joint estate, the Appellant on the other hand asked for an order for
forfeiture.
[10] The Appellant who resides at 1 […] G[…] M[…] Street, Welgelegen,
Polokwane is also an owner of property known as Section No. 4 […], Theresa Park
Gables, which is situated at Theresa Park, Extension 46 Township, in T shwane. She
is employed and currently a member of the National Tertiary Retirement Fund
(NTRF). In the particulars of claim the Respondent prayed for an order that he be
awarded 50% of the Appellant's pension benefits.
[11] I have mentioned earlier that t he Appellant prayed for a remedy to the effect
that the Respondent be ordered to forfeit the patrimonial benefits from the marriage
in respect of two properties, namely:
[11.1] immovable property, Section No. 4[…], Theresapark Gables, in
Tshwane; and
[11.2] her pension interest in the NTRF.
[12] It is common cause that the parties no longer stay together. The Respondent
resides at 1 […] F[…], Palmietfontein, R37, Polokwane having moved out of the
parties matrimonial home during February 2023. Their mat rimonial home is at the
address which is currently occupied by the Appellant, which I have already
mentioned above. This is one of the grounds that have been listed by the Appellant
in the counter-claim as having contributed to the divorce.
Judgment from the Court a quo
[13] Only the question of forfeiture 1 of matrimonial benefits was at issue on this
occasion. It was the Appellant who had prayed for an order for partial forfeiture of
benefits. She wanted the Court to order the Respondent t o forfeit an immovable
property and a benefit from her pension interest in the National Tertiary Retirement
Fund. It was contended on her behalf that the Respondent stood to be unduly
benefitted if the order for partial forfeiture was not granted in her favour.
[14] It is trite that the party seeking forfeiture bears the burden of proof. Thus, it
was the Appellant only who testified before the Court a quo. The Respondent did not
testify in rebuttal of the Appellant's case. Once the Appellant was done testi fying an
application was moved on behalf of the Respondent for the impugned absolution
order.
[15] The Court a qu o considered the evidence that was led orally before it and
declined to grant forfeiture order. It instead granted absolution from the instanc e,
1 Section 9 of the Divorce Act No. 70 of 1979.
which order gave rise to this appeal. The Magistrate noted her reason for seeking
forfeiture as follows:
"[30] When asked why she wanted a different outcome, she said it was
because he was accusing her of things: She also did not get a say in the
use of the money they got from selling the house. He benefited from that
sale hence he must not benefit from her."
[16] As noted by the Court a qu o, the Appellant accused the Respondent of
misappropriating funds but that she did not testify about it in her evi dence in chief. It
then noted that her basis for the alleged misappropriation was that he had moved
funds between accounts, but that she was shown during cross examination that the
funds had never left the joint estate.2 The Court also remarked that:
"[49] On her evidence there is no proof of any undue benefit."
[17] The Court a qu o then remarked that there was no evidence before it upon
which it could or might reasonably find in favour of the Appellant. It was on that basis
that it granted an order for absolution. It is that order that the Appellant is aggrieved
by, and wants to have overturned in this opposed appeal.
Whether an order for absolution from the instance is appealable
[18] On behalf of the Appellant it was contended that the Court a quo did not apply
the law on absolution correctly. The argument went further to contend, relying on the
authority in Supreme Service Station (1969) (Pty) Ltd v Fox and Gocgridge (Pty)
Ltd,3 that the Plaintiff oug ht not to be lightly denied of a remedy without hearing the
evidence of the Defendant. Further that, '... where the factual situation is complex
and the legal position uncertain, the interests of justice will often better be served by
the exercise of the discretion that the trial judge refuse absolution'.4
2 Judgment at para [35].
3 1971 (4) SA 90 (RA) at 93A.
4 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) at 80.
[18] This case is neither complex not one about which the legal position is
uncertain.
[20] It is appropriate to restate the test for absolution from the instance. An
essential inquiry when a Court is to determine whether to grant absolution from the
instance is whether there is evidence upon which a court, when applying its mind
reasonably, could or might find for the plaintiff. This entails that a court would not
grant absolution from the instance where the pl aintiff has, at the end of his or her
case, presented an answerable case or prima facie case.
[21] The test for absolution was confirmed in Gordon Lloyd Page & Associates v
Rivera and Another 5 with reference to Claude Neon Lights (SA) Ltd v Daniel6 in the
following manner:
"When absolution from the instance is sought at the close of the
plaintiff's case, the test to be applied is not whether the evidence led by
the plaintiff established what would finally be required to be established,
but whether there i s evidence upon which a court, applying its mind
reasonably to such evidence, could or might (not should, nor ought to)
find for the plaintiff."
[22] Counsel for the Respondent contended that an order for forfeiture from the
instance is not appealable. F or this contention he relied on the authorities in CJ
Steenkamp v South African Broadcasting Corporation ,7 H.J v P.J and H Jordaan v
The Bloemforntein Transitional Local Authority and Another .8 He argued that, based
on the principles espoused in these auth orities, this Court should simply dismiss the
appeal or strike it off with costs.
5 2001 (1) (SCA) at 92E-93A.
6 1976 (4) SA 403 (A) at 409G-H.
7 2002 (1) SA 625 (SCA).
8 2004 (3) SA 371 (SCA).
[23] The Court in H.J v P.J ,9 supra, dealt with the principles on appealability of
judgments or orders in the following manner:
"[9] It is trite that an application for a request for further particulars is
purely interlocutory. In advancing 'the interests of justice' in this appeal
as a basis for the high court proceeding with the merits of this matter,
the respondent's counsel overlooked this Court's recent decision in
TWK v Hoogveld Boerderybeleggings (TWK ). In TWK, this Court
interrogated the notion thoroughly af ter carefully analysing several
decisions of this Court which had been willing to part from the Zweni v
Minister of Law and Order (Zweni) judgment and said the following:
'Even if this is so as a matter of principle, as the defendant's counsel
reminded us, a number of decisions of this Court have been willing,
with different degrees of separation, to part from Zweni, or subsume
Zweni under the capacious remit of interests of justice. I do not here
essay a general account of appealability. I do affirm, thoug h, that the
doctrine of finality must figure as the central principle of
consideration when deciding whether a matter is appealable to this
Court. Different types of matters arising from the high court may (I put
it no higher normatively) warrant some meas ure of appreciation that
goes beyond Zweni or may require an exception to its precepts. Any
deviation should be clearly defined and justified to provide
ascertainable standards consistent with the rule of law. Recent
decisions of this Court that may have b een tempted into the general
orbit of the interests of justice should now be approached with the
gravitational pull of Zweni. [Emphasis added]
[24] The point by the respondent is well -made and I accept it. Absolution from the
instance may be granted at the end of the plaintiff's case if the plaintiff has failed to
adduce sufficient evidence upon which a reasonable court might grant judgement in
adduce sufficient evidence upon which a reasonable court might grant judgement in
his or her favour. Also, such order may be granted where the plaintiff has not
9 (285/2023) [2024] ZASCA 55 (19 April 2025).
produced sufficient evidence to establish a prima facie case. In other words,
absolution may be granted where the plaintiff has not advanced a case in respect of
which all the elements of the claim have been proven.
[25] The question of appealability of a Court order or judgment was canvassed by
Harms AJA in Zweni v Minister of Law and Order of the Republic of South Africa as
follows:
"[F]irst, the decision must be final in effect and not be susceptible of
alteration by the Court of first instance; second, it must be definitive of
the rights of the parties; and, third, it must have the effect of disposing
of at least a substantial portion of the relief claimed in the main
proceedings."
[26] The order for absolution in this case is not dispositive of the case, just one
aspect of the case in that the court refused to grant a forfeiture order. That order has
no final effect, is not a definitive proceeding, and does not have the effect of
disposing of at least a substantial portion of the relief claimed in the pending divorce
action between the parties. The order does not affect the rights of the parties. On
that basis, the appeal should fail. Having reached this conclusion, I do not proceed to
deal with the merits of the appeal.
Order
[27] The following order is made:
[a] The appeal is dismissed with costs.
MZ MAKOTI
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
I AGREE
MF KGANYAGO
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
FOR APPELLANT : M DE KLERK
DDKK ATTORNEYS
POLOKWANE
FOR RESPONDENT : ADV F MARX
WEIDEMANN ATTORNEYS
POLOKWANE
RESERVED ON 21 FEBRUARY 2025
DELIVERED ON 09 SEPTEMBER 2025