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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: A3088/2022
DOH: 5 JUNE 2025
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
B[…] M[…] P[…] APPELLANT
T[…] K[…] P[…] RESPONDENT
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 19 September 2025
______________________________________________________________
JUDGMENT
______________________________________________________________
MALI J (Noko J concurring)
Introduction
2
[1] The appellant instituted an appeal against the entire judgment and order of
the Randburg Regional Court (court a quo) in terms of the dismissed claim
for the forfeiture of patrimonial benefits. The parties were married to each
other on 15th September 2001 in community of property and profit and loss.
On 30 January 2019 the respondent instituted divorce proceedings against
the appellant.
[2] The marriage was dissolved on 2 June 2022 by the order of the court a
quo, at the instance of the respondent , the plaintiff then. The appellant who
was the defendant had launched a counterclaim in respect of forfeiture of
certain assets of the joint estate.
[3] It is common cause that the appellant filed an appeal, which later lapsed.
Nevertheless, she has applied for reinstatement of same. The application
for reinstatement of the appeal is opposed.
Reinstatement of the appeal
[4] Appellant submit ted that the reason for the delay was caused by not
obtaining the transcript from the court a quo timeously. According to the
appellant, the delay was for a period of two days.
[5] The respondent disputes that the period of delay was that short. The
appellant received quotation on 23 June 2022 and only paid for the
transcript on 2 August 2022, therefore the appellant did not account for the
two months delay. Respondent’s contention is correct; however, it cannot
be the end of the matter.
[6] In adjudicating matters of this nature, the court is enjoined to consider the
prejudice suffered by the other party and whether it is in the interests of
justice to grant the condonation. Respondents did not make submissions
pertaining to prejudice they suffered or stand to suffer in the event the
reinstatement is granted. A period of two months is not so inordinate.
Furthermore, taking into account the importance of the issues for appeal
and prospects of success, it is in the interests of justice to reinstate the
appeal.
3
Background
[7] During the subsistence of the marriage the appellant was employed as the
Executive in the Corporate Sector and the respondent was a businessman.
Amongst the respondent’s ventures, he was involved in the property
business. The appellant had always earned income more than that of the
respondent. The parties were also 50% shareholders in a company called
Lavela Holdings (Lavela). Lavela has an immovable asset in Gqeberha,
which is not an asset of the joint estate.
[8] Between 2008 and 2009 the respondent’s business experienced financial
difficulties and finally collapsed in 2009. The respondent relied on the
appellant for financial assistance until he finally moved out of their
matrimonial home in 2016. In 2015, the respondent started working for
Aspen in Eastern Cape, since then he never again lived in the m atrimonial
home.
[9] It is common cause that the joint estate had movable and immovable
assets. T he parties’ first matrimonial home acquired in 2004 which was
situated in Kyalami Boulevard, was sold in 2005 with a profit of
approximately R1m. The amount of R1m was utilized as part payment to
secure the matrimonial home in Blue Hill, (Summerset property), for the
amount of R2,2m. The stand was bought for R690 000 and the difference
consisted of the amount of building costs. As at 2022 during the divorce
hearing, the value of Summerset property was valued at R4,795,000.
whilst the balance owing was in the amount of R800 000.
[10] When the parties met , the respondent had an immovable property in
Gqeberha (GQ property) which he sold after they got married. The
proceeds of the sale were not shared between the parties as the
respondent insisted and still insists that he bought the property before the
parties got married. Therefore, he does not consider the GQ property as an
asset of the joint estate.
[11] The parties bought a house for R350 000 in 2007, cash wherein the
appellant contributed R50 000. The immovable property was bought for the
4
respondent’s mother. The property was later sold in 2008 for R322 000
and the proceeds were shared amongst the respondent and his siblings.
[12] Movable property included, a motor vehicle, 2013 Mercedes ML which was
purchased for an amount of R840 000. In 2020 it was valued at R245 000.
Before the court a quo
[13] The appellant did not resist the claim for a decree of divorce. The appellant
sought forfeiture of the following assets of the joint estate.
13.1. Unit 16 Summerset Estate, Blue Hills, Midrand (the matrimonial
home)
13.2. Furniture and household effects situated at the matrimonial home;
13.3. 2013 Mercedes ML- 350-4 -Matic motor vehicle.
[14] The appellant also requested an order that the respondent should not be
entitled to any portion of her pension interest, with reference to:
14.1 Allan Gray Living Annuity- account number AGLA822537;
14.2 Allan Gray Living Annuity – account number AGLA837487; and
14.3 Allan Gray Living Retirement Annuity Fund - account number.
AGRA846241.
[15] The appellant disputed that she was the cause of the breakdown as set out
in the respondent’s particulars of claim. In support of her claim for a partial
forfeiture of benefits, the appellant testified of the respondent’s immense
lack of contribution to the joint estate and or denuding of same. The
circumstances that gave rise to the irretrievable breakdown of the marriage
are the substantial misconduct on the part of the respondent . She was the
major financial contributor to the estate, whilst the respondent made
minimal contributions to the joint estate. The respondent would be unduly
benefitted unless an order is granted that the respondent forfeits any
entitlement to share in the assets of the joint estate.
5
[16] The appellant contributed directly and indirectly to the joint estate in that
she was solely responsible for the matrimonial home. She paid the
purchase price and cost of improvement of the matrimonial home. She also
bought all the furniture and household effects of the immovable properties
referred to above.
[17] At the time the respondent was involved in the property business, he only
paid for the maintenance of the swimming pool from 2005 to 2008 until his
disappearance to Gqeberha in 2009. The respondent did not deny that he
left the matrimonial home in 2009. His reason was that he went away to
relax in Gqeberha. It is at that time that the appellant alleges that the
respondent fathered a child out of extra marital affair. He did not deny that
he had a child born in 2009, whilst the marriage still subsisted; however,
he claimed to have adopted the child. This averment is not supported by
any evidence for the unilateral adoption.
[18] The respondent did not deny that i n 2004 he voluntarily resigned where he
was working to start a business venture. He was paid R 93000 in UIF
earnings which he did not use towards the matrimonial home or joint
estate. The appellant learnt about that when she was looking for
documents to prepare for the trial in the court a quo.
[19] During the respondent’s disappearance the appellant was left to raise their
two children alone. When the respondent returned in 2009, he expressed
the desire to go back to University to study towards a degree in Pharmacy.
The parties had agreed that when he qualifies and gets a better paying
employment, he would assist in taking care of the family, including getting
medical aid for the appellant and children. However, the respondent
testified that the reason he went back to University for a Pharmacy degree
when he already had BSC degree and MBA is because he wanted to relax
from the stresses of his unsuccessful business venture.
from the stresses of his unsuccessful business venture.
[20] The respondent paid for his own tuition during the first year, 2010. The
respondent did not deny that the appellant paid for his studies towards a
Pharmacy Degree from 2011 to 2013. He only disputed that there was an
agreement to pay back the appellant, although he confirmed that the
6
appellant assisted him with fuel costs to attend the classes. Furthermore,
the appellant also paid the respondent a minimum of R5000 and a
maximum of R7000 per month allowance whilst he was studying. This is
besides paying for the respondent’s books. Subsequent to attaining the
degree, the respondent never kept his promise of taking care of his family.
He again left the matrimonial home in 2016 and up until he filed for the
divorce proceedings.
[21] The respondent testified that he contributed by looking after the children
during the time he was studying as the appellant would leave home at
7h00 and come back at 22h00. The respondent further testified that he
contributed physically and financially in building the Summerset property.
However, he did not gainsay the appellant’s evidence that he only
supervised the builders, which supervision sometimes would be shoddy as
there were parts of the home which needed redoing. At one stage the
appellant had to pay an amount of R100 000 to the municipality for non-
compliance on the part of the builders ; whereas they were under the
respondent’s supervision.
[22] The respondent once paid R600 000 from the account of Lavela into the
bond of the matrimonial home, reducing the balance of the bond, he later
demanded the amount with interest. The appellant made the payment with
interest of R20 000 as demanded by the respondent.
[23] During the subsistence of marriage, the respondent was physically,
verbally and emotionally abusive. At one stage he assaulted her in the
presence of the children. The assaults led to the appellant obtaining an
interdict against the respondent. The respondent denied having assaulted
the appellant, despite admitting that the appellant successfully obtained a
court order against him. His excuse for not challenging the interim interdict
is that he was tired of attending court proceedings due to numerous
postponements. The respondent did not challenge the appellant ‘s
postponements. The respondent did not challenge the appellant ‘s
evidence that he was the author of the postponements as he changed
lawyers and had requested postponement four times.
7
[24] The respondent did not dispute that he has many children from extra
marital affairs, whom he maintains whereas he did not maintain the two
children born out the wedlock between the parties. Besides the child the
respondent refers to as adopted, there are two other children born out of
the respondent’s extra marital affairs. The first child is a girl, whom the
appellant got to know about in 2006 and the second one, was a 2 -year-old
child born around 2022.
[25] Under cross examination the respondent denied that he left the
matrimonial home in 2013, he insisted that the parties started living apart
from 2016, although in 2017 he stayed in the matrimonial home for a
period of three months. He further denied that during 2009 he was absent
from the matrimonial home for a period of nine months.
[26] At the time of the trial the joint estate was left with a single property being
the matrimonial home . According to the respondent he had sold the other
properties in 2009 due to economic recession. The respondent consented
to forfeiture of the movable property, and household furniture located in the
matrimonial home. Nevertheless, he claimed the 50% share in the
matrimonial home.
[27] The court a quo found that the respondent would be benefitted if the
forfeiture was not granted. However, the court found that the respondent
would not been unduly benefited, as follows:
“The evidence would suggest that this was a normal marriage with its
normal perils up to the point where the plaintiff’s business was closed at
2009.
At a point the Defendant stated the Plaintiff made her feel as if she was
stealing money from him. They did not spent time together. The
Defendant felt the Plaintiff did not contribute to the matrimonial home or
the expenses of the family. They did not sleep in the same room since
2015. They did not stay together since 2017. They lacked trust and
communication since 2015. The Plaintiff had an extra-marital affair which
communication since 2015. The Plaintiff had an extra-marital affair which
started after he left the matrimonial home. The Plaintiff was not as
actively involved in all the children’s activities as the Defendant would
8
have hoped. The Defendant and the extended family of the Plaintiff did
not get along. The Defendant had to obtain medical assistance for her
mental state.
Any substantial misconduct on the part of either of the parties
where the court is satisfied that, if the order for forfeiture is not
made, the one party will in relation to the other be unduly
benefited.
All though the Plaintiff in this matter clearly benefitted there is no
ground for the court to find on a balance of probabilities that he unduly
benefitted.
As to the alleged assault. The court has the word of the Defendant
which is denied by the Plaintiff. The basis for the domestic violence
interdict was not presented to the court. There was no criminal cases
opened by the Defendant. There is no indication that the Defendant got
any medical assistance. She after the interdict was granted asked the
Plaintiff not to move out of the matrimonial home by taking up
employment in Port Elizabeth but to take employment close to the
home. Both the parties testified that the Plaintiff started the divorce
proceedings in 2015 and only after this was initiated was the domestic
violence case opened.
It is clear from the evidence that the Plaintiff will not win a father of the
year award. This by itself does not prove that he will unduly benefit if
forfeiture is not granted.
The extra marital affair the Plaintiff admitted to was after the marriage
was for all purposes irretrievably broken down and he already left the
marital home. There is no ground for the court to find that there was an
extra-marital affair or biological children born prior to this point. The
court do not find substantial misconduct.”
[28] In conclusion the court a quo granted an order dissolving the bonds of
marriage; and further ordered that the appellant is entitled to the
respondent’s 50% pension interest as the respondent is the member of
Government Employees’ Pension Fund.
9
[29] The appellant was aggrieved by the findings of the court a quo and
launched this appeal on the following grounds; forfeiture of the assets ;
Allan Gray investments and costs of suit.
On appeal
[30] The appellant contends that the court a quo had deprived the appellant
assets which the respondent agreed to forfeit. Those being all the furniture
and household effect s located at the matrimonial hom e as well as the
motor vehicle, 2013 Mercedes ML.
[31] Secondly, notwithstanding what appears to be long duration of the
marriage at the time of the divorce, the parties have lived separate lives
since 2013 as if already divorced. The appellant continued making
payments for home loan, household effect s and maintenance of the
children single-handedly, since they were minors. Although the parties’
children are majors, they were still studying and fully dependent on the
appellant. Whilst the respondent never contributed towards the
maintenance of his children born of the marriage, he instead took loans to
pay school fees for one of the children born out of his extra marital affairs.
[32] The appellant also seeks clarity in that the court a quo did not make
pronouncement on the appellant’s Allan Gray’s investments. The appellant
seeks relief that the respondent be disentitled to any portion of the
appellant’s Allan’s Gray investment.
[33] The respondent’s counter argument is that the appellant admitted to
having converted her pension fund held with Network BBDO to a living
annuity after the institution of the divorce proceedings; whereas she wants
to benefit from the respondent’s pension fund. Thus, she acted mala fides.
Furthermore, the appellant never shared the R2M bonus with the
respondent she used to receive annually all the time they were living
together.
[34] Furthermore, it is submitted that the appellant did not prove the allegations
of infidelity. Regarding the forfeiture of furniture and household effects
of infidelity. Regarding the forfeiture of furniture and household effects
located at the matrimonial home, it is submitted that the respondent acted
10
“out of goodness of gesture” . It is misconstrued that the respondent
consented to the forfeiture of same. Since the respondent was not
represented in the court a quo, the respondent as a lay person did not
understand the difference between forfeiture and “good gesture”.
[35] Gleaning from the transcript, the following bears:
“At paragraph 6A2, she is asking that the furniture and household
effects, that is situated in the property, the matrimonial home, that she
bought.
And there 2022-04-13 is a whole list of them, you will see she says what
the values are, what the purchase price was, she is asking that those
assets be forfeited, in other words that she becomes the sole owner of
that property, that movable assets and that you will have no claim to that.
What is your response to that? Do you have an objection to that?
MR PEZICA: I think we agreed last time.
MS DENNISHAW: So you are in agreement that she can
become...[intervenes]
MR PEZICA: Yes.
MS DENNISHAW: The sole owner of that property?
MR PEZICA: Not the, of those furniture.
MS DENNISHAW: Yes correct.
MR PEZICA: Assets.
MS DENNISHAW: The movable assets in the house.
MR PEZICA: Yes.
MS DENNISHAW: Then if you go to page 78, the next paragraph
pertains to the Defendant’s vehicle, she is asking that this vehicle, it is
her 2013 Mercedes, she gives the 20 value, the before and, the
purchase price and the current value of the vehicle, that that vehicle also
11
be forfeited, in other words that she becomes the sole owner of that. Do
you have any objection to that?
MR PEZICA: No. “
[36] When the respondent was asked whether he was inclined to forfeit 50% of
his share in the matrimonial home, the respondent ’s answer is a clear
objection as follows:
“So the Summerset property will become her sole asset, she will in other
words be liable for the bond going forward and all the expenses in relation
to that property. Do you have any objection to that request?
MR PEZICA: Yes.
MS DENNISHAW: What is your objection?
MR PEZICA: 50% each.”
[37] It was submitted on behalf of the respondent that he is entitled to 50% of
the income derived from the living annuity as the income forms part of the
joint estate. It is further submitted that the respondent cannot be painted as
a bad person because of his lower earnings compared to the appellant. It
was the appellant’s choice to maintain an extravagant lifestyle which
included taking the kids to expensive schools.
[38] For the foregoing, the respondent maintained the appellant failed to prove
misconduct on the part of the respondent which will result to the
respondent forfeiting the assets of the joint estate. Respondent’s
arguments are that the appellant failed to prove misconduct leading to
undue benefit.
Legal principles and analysis
[39] Section 9 of the Divorce Act, dealing with forfeiture of patrimonial
benefits of marriage, provides that:
‘(1) When a decree of divorce is granted on the ground of the
irretrievable break-down of a marriage the court may make an order that
12
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 gave rise to the
break-down 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 benefited.’ (My
emphasis.)
A court must therefore consider the claim for forfeiture having regard to
three factors, namely, the duration of marriage, the circumstances which
gave rise to the breakdown thereof and any substantial misconduct on
the part of either of the parties. These factors must not be considered
cumulatively and the presence of any one of them would entitle a
court to grant an order of forfeiture. [ Added Emphasis]
[40] In M v M 1 the court granted a partial forfeiture of patrimonial benefits,
specifically a pension interest, against a respondent who failed to provide
for the joint estate and instead used financial resources for the benefit of a
third party. The court found that the respondent's substantial misconduct,
including financial neglect of the joint estate and abandonment of financial
obligations, resulted in an undue benefit for him if forfeiture was not
ordered, leading to the justification of forfeiting his half -share of the
pension benefits.
[41] Having regard to the above legal principles, the argument by the
respondent that the appellant did not prove unlawful conduct or substantial
misconduct in that the appellant failed to prove infidelity on the par t of the
respondent cannot stand. There are at least two children born out of extra
marital affairs of the respondent. For one of them the respondent even
took educational loan/s for her schooling and the 2009 child he bore during
his “relaxation period” he could not prove the child’s adoption.
[42] Furthermore, the respondent’s submission that the appellant chose to live
[42] Furthermore, the respondent’s submission that the appellant chose to live
extravagantly, that including taking children to expensive schools, is
irresponsible to say the least , thus unsustainable. The respondent
benefitted from what he refers to as the luxurious lifestyle. He even gained
1 (2023 ZASCA 75),
13
his education from it; whilst he saw nothing sinister about being
remunerated for taking care of his own children. He even questions the
R2M annual bonus of the appellant despite benefitting from it. The
respondent did not dispute that he had savings ; for example the amount of
R55 000 with Liberty Life; which he did not utilize for the joint estate and
towards maintenance of his children, despite being a low earner.
[43] With regards to the parties’ children’s education judicial notice is taken that
in the present times the best education is mostly obtained through private
tuition. This comes at a price. A responsible parent like appellant who is
desirous of investing in the future of her children cannot be punished for
doing right; because the respondent sees things in a different light . Private
education is not a luxury; respondent’s contribution would have made
things easy for the appellant. It is baffling that the respondent took one of
his children not born of the marriage between the parties to the same
private school; which he terms an extravagance.
[44] The respondent diminished the joint estate, by utilizing the money for his
studies which would not benefit the joint estate. Instead he deemed it fit
not to maintain his children. It is irrelevant whether he made promises to
pay back the money and/ or to fund the family’s medical expenses or not.
He had a duty towards the maintenance of his children and the joint estate.
Instead, he ensured that his children born out of wedlock whether before or
during the subsistence of the marriage were maintained.
[45] It is apparent that the respondent was financially abusive, he treat ed the
joint estate as his financial fiefdom. For example amongst others , the
immovable property he bought before marriage was excluded from the
estate. He sold the asset of the joint estate and shared the proceeds with
his siblings.
[46] The respondent did not submit any evidence, despite him during cross
his siblings.
[46] The respondent did not submit any evidence, despite him during cross
examination stating that he shared the proceeds of sale of various
properties with the appellant. When the evidence was rebutted, he said
that he could not remember or made bald denials. He conceded having
14
sold and shared the proceeds of the sale of the immovable property with
his siblings, the property of the joint estate.
[47] In Wijker v Wijker2: the court held as follows:
“The fact that the appellant is entitled to share in the successful business
established by the respondent is a consequence of their marriage in
community of property. In making a value judgment this equitable
principle applied by the Court a quo is not justified. Not only is it contrary
to the basic concept of community of property, but there is no provision
in the section for the application of such principle. Even if it is assumed
that the appellant made no contribution to the success of the business
and that the benefit which he will receive will be a substantial one, it does
not necessarily follow that he will be unduly benefitted.”
[48] In Binda v Binda 3: it is stated that unless a party can prove that division
would be inequitable in the particular circumstances of the case, the
parties should be held to the proprietary regime into which they contracted.
A value judgment must be made to determine whether the benefit will be
undue.
4 Forfeiture shall be ordered if it is found that it is disturbingly unfair
for the respondent to share equal with the appellant.5
[49] As to the question of clarity on annuities, in Montanari v Montanari 6 it is
held:
“[34] There is no indication in any of the legislation that applies to living
annuities ie, the Pension Funds Act (in ss 3 7A and 37B), and the Income
Tax Act (which defines a living annuity), the Financial Institutions Act
itself and the Glacier contracts concluded between the parties, that the
living annuities are regarded as annuities as “ trust property; Neither is
there even a hint of a fiduciary relationship between the parties in these
legal instruments. The provisions of the Financial Institutions Act add
nothing to the applicant’s case.
2 [1993] 4 ALL SA 857 (AD):
3 “A final nail in the coffin for the fault principle?” DR (1993) 1088 at 1089,
3 “A final nail in the coffin for the fault principle?” DR (1993) 1088 at 1089,
4 (Cronjé and Heaton, Die Suid-Afrikaanse Familiereg, 2nd (2004) 136).
5 T.J.M v K.J.M and Another (11409/2022) [2025] ZAGPPHC 253 (3 March 2025).
6 [2020] ZASCA 48 (5 May 2020).
15
[35] But do these findings disentitle the applicant from any claim
whatsoever in regard to the respondent’s annuities? I think not. In an
analogous decision, De Kock v Jacobson, 19 the court determined
whether a pension that the husband was receiving was an asset in the
joint estate of a couple married in community of property. Upon his
retirement, prior to the divorce, he ceased to be a member of the pension
fund to which he had belonged and his pension interest was converted
into a pension. His right against the pension fund had two components; a
right to a cash payment (which he conceded fell within the community of
property) and a right to monthly payments by way of pension.
The court answered the question in the affirmative stating:
“[36] the question then remains whether the right to the pension is part of
the community of property. There is to my mind no reason in principle
why the accrual right to the pension should not form part of the
community of property existing between the parties prior to the divorce.
Community of property is defined in Hahlo The South African Law of
Husband and Wife 5
th ed at 157 8 in these terms: “community of property
is a universal economic partnership of the spouses. All their assets and
liabilities are merged in a joint estate, in which both spouses, irrespective
of the value of their financial contributions, hold equal shares.” See
Grotius Jurisprudence of the Holland 3.21.10. A spouse’s salary falls
within the community of property. See Hahlo (op cit at 161), where he
says: “community of property is a universal economic partnership of the
spouses. All their assets and liabilities are merged in a joint estate, in
which both spouses, irrespective of the value of their financial
contributions, hold equal shares.”
See Grotius Jurisprudence of Holland 3.21.10.
A spouse’s salary falls within the community of property. See Hahlo (op
cit at 161), where he says “The joint estate consists of all the property
cit at 161), where he says “The joint estate consists of all the property
and rights of the spouses which belonged to either of them at the time of
the marriage or which were acquired by either of them during the
marriage”
…
16
See also Voet 23.2.68,69.
[37] The court cited with approval two judgments. First was Clark v
Clark,20 in which the court accepted that a spouse’s interest in a pension
which had not yet accrued did indeed form part of the community estate,
as did a pension right.”
[50] Having regard to the above it is trite that only the income portion of the
annuity forms part of the joint estate.
Conclusion.
[51] The court a quo correctly found that the length of marriage is a
consideration for non- forfeiture. The respondent left the matrimonial home
between 2013 and 2016, with earlier intervals for “relaxation” .
Nevertheless, the period of 12 years is not a short period of time.
[52] The court a quo erred in not making express pronouncement regarding the
income portion of the appellant’s annuities. It further erred in granting the
order for 50% division of all assets, despite the respondent having agreed
to forfeiture. Judging from respondent ’s answers during the trial; the
respondent clearly understood what was meant by the forfeiture of the
above mentioned assets. The respondent is being opportunistic, taking
advantage of the misdirection of the court a quo.
[53] Furthermore, the court a quo misdirect itself in not finding that there was no
substantial misconduct . The respondent substantially misconducted
himself by financially abusing the appellant as discussed above. Moreover,
the finding by the court quo made on the basis that the appellant did not
produce the protection order, and that she did not lay criminal charges is a
misdirection. The respondent did not deny that the appellant obtained a
protection order against him. He opted not to defend the matter. There can
be no doubt that assault of a person does constitute an act of misconduct.
It encroaches on the dignity of a person. The preamble of the Domestic
Violence Act 7 states that domestic violence is a social evil. Section 1 of
the Domestic Violence Act defines domestic violence to mean amongst
7 116 of 1998.
17
others physical abuse. A ssault is a form of physical abuse. Overall, the
appellant misconducted himself substantially.
[54] The court takes into consideration that by virtue of marriage in community
of property the respondent should benefit from the joint estate, whether
partially so or in full . In this regard the sacrosanct principle that forfeiture
order is not meant to punish the other party needs to be upheld and as a
result, the order for forfeiture as set out below is partial in some respects
and in full in other respects.
[55] In the result this court is entitled to interfere with court a quo’s order;
therefore, the following order ensues:
ORDER
1. The appeal is reinstated;
2. The appeal is upheld;
3. The order of the court a quo is set aside and substituted as follows:
3.1 The plaintiff shall forfeit 100% (all) in household effects and furniture
located in Summerset Property.
3.2 The plaintiff shall forfeit 100% – in motor vehicle, 2013 Mercedes ML-
350-4 -Matic motor vehicle.
3.3 The plaintiff shall forfeit 80% share of the interest in the matrimonial
home (Summerset Property), the value of the property being R4, 795,
000 as at 1 April 2021.
3.4 The plaintiff is entitled to 2 0% of the income derived from the
defendant’s interest in Allan Gray living annuities as follows:
3.4.1 Allan Gray Living Annuity- account number AGLA822537;
3.4.2 Allan Gray Living Annuity – account number AGLA837487; and
3.4.3 Allan Gray Living Retirement Annuity Fund - account number
AGRA846241.
18
4. The defendant B[…] M[…] P[…] is entitled to 50% of the pension interest
held by the plaintiff , T[…] K[…] P[…] at Government Employees Pension
Fund (GEPF) as defined in section 1(1) of the Pension Fund Act 24 of
1996.
5. Each party shall pay their respective legal costs.
_________________________
NP MALI
JUDGE OF THE HIGH COURT
I agree ________________________
MV NOKO
JUDGE OF THE HIGH COURT
Appearances
Counsel for the Applicant
Adv C Denichaud
Instructed by EFG Inc
011 341 0510
janita@efglaw.co.za
Counsel for the Respondent
Adv MS Nene
Instructed by Dudula Inc
011 331 1585/6
clerence@ydattorneys.co.za
Date of Hearing: 05 June 2025
19
Date of Judgment: 19 September 2025