SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 24100/2020
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED: NO
DATE: 16 SEPTEMBER 2025
SIGNATURE:
In the matter between: -
J[...] J[...] T[...] APPLICANT
(I.D NUMBER: 6[…])
And
M[...] S[...] T[...] RESPONDENT
(I.D NUMBER: 7[…])
This judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives by email. The
judgment is further uploaded to the electronic file of this matter on CaseLines by the
Judge or her Se cretary. The date of this judgment is deemed to be 16 September
2025.
JUDGMENT
COLLIS J
Introduction
1] This is an opposed application in terms of Rule 42(1) of the Uniform Rules of
Court for an order varying a decree of divorce granted by Munzhelele J on 12 April
2023.1
2] The respondent opposed the application and in addition launched a
counterapplication for the appointment of a liquidator. The counterapplication is also
opposed by the applicant.2
Background
3] The parties before court were previo usly married to each other in community
of property. Their marriage relationship had broken down irre trievably resulting in the
respondent issuing summons for divorce proceedings.3
4] The applicant was the defendant in the divorce action, and he defended the
divorce proceedings by delivering a plea and counterclaim.4
5] After close of pleadings, the applicant failed to sign a pre -trial minute, despite
being compelled to do so by an order of court.5
6] As a result of this failure by the applicant and the applicant ’s non-compliance
of a subsequent contempt order, the respondent brought an application for an order
striking out the applicant’s defense and counterclaim.
7] On 20 January 2023, this order was granted and the divorce thereafter
proceeded on an undefended basis.6
1 Notice of motion, p TI-T2; Decree of divorce, p T9.
2 Notice of counterapplication, p T2 -T3; Applicant’s Replying affidavit to the Respondent’s
counterapplication, p T3-3 to T3-4.
3 Combined summons, p A1-A3.
4 Plea and Counterclaim, A120A19.
5 Compel order: 17 June 2022, p Q1.
6 Striking out order: 20 January 2023-p Q3.
8] The decree of divorce so granted, sp ecifically provided for the division of the
parties’ joint estate, which includes but is not limited to, the respondents’ pension
interest in the Government Employees Pension Fund, of which the applicant is a
member.
Issues to be decided
9] In the present application, this Court was called upon to decide the following:
9.1 whether the applicant has made out a case for the va riation of the
divorce decree or differently put whether the omission of the applicant’s
pension interest from the divorce order constitutes a patent error or omission
capable of correction or variation;
9.2 whether a liquidator should be appointed for the purposes of division
the joint estate of the parties; and
9.3 a determination as to who should be ordered to pay the costs of both
the main and counterapplication.
10] To the matter at hand the respondent took issue with the late delivery of the
Relying affidavit without condonation being sought simultaneously. This is so, as the
Answering affidavit was served on the applicant’s attorney on 16 August 2024, 7 but
that the Replying affidavit to the main application and Answering affidavit the
counterapplication was only served on the respondent’s attorney on or about 29 April
2025, this some eight months later.
11] As the applicant did not seek condonation for the lat e delivery of his
respective replying and answering affidavits, counsel for the respondent c ontended
that the filing of these affidavits in the absence of seeking condonation for its delivery
outside the permissible time frames allowed by the rules should be regarded as
irregular and falls to be disregarded by the Court.
7 Proof of service in respect of answering affidavit, p T2-1.
12] Rule 6 of the Uniform Rules of Court sets out the time frames for the delivery
of affidavits and absent compliance wit h these time frames, a litigant is required to
seek condonation in terms of Rule 27, which the applicant herein has failed to do.
13] In the absence of such condonation, this Court is deprived of being given the
benefit of an explanation on good cause s hown, explaining the lateness for the
delivery of such affidavits.
14] Given that no condonatio n has been applied for and none has been granted,
this Court as a result, will proceed to consider the merits of both the main application
and the counterapplication without having regard to such affidavits.
15] The effect thereof is that the applicant ha s failed to dispute the allegations
made by the respondent in her answering affidavit to the main application and so too
the applicant has failed to dispu te the facts set out by the respondent in support of
her counterapplication. Consequently, these fac ts would generally be accepted as
true.8
16] As previously mentioned, the crux of the dispute between the parties, turns
around the decree of divorce granted and more specifically the order made by the
court in relation to the division of the joint estate of the parties.9
17] In this regard th e Divorce Act, 70 of 1979 (‘the Act’) and more specifically
section 7(7) and 7 (8), is of relevance and reads as follows:
“(7)(a) In the determination of the patrimonial benefits to which the parties to
any divorce action may be entitled, the pension in terest of a party shall,
subject to paragraphs (b) and (c), be deemed to be part of his assets.
(b) The amount so deemed to be part of a party's assets, shall be reduced
by any amount of his pension interest which, by virtue of paragraph (a), in a
previous divorce-
(i) was paid over or awarded to another party; or
8 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)Ltd 1984 (3) SA 623 (A).
9 Annexure A: Decree of divorce, p T9.
(ii) for the purposes of an agreement contemplated in subsection (1), was
accounted in favour of another party.
(c) …..
(8) Notwithstanding the provisions of any other law or of the rules any
pension fund-
(a) the court granting a decree of divorce in respect of a member of such a
fund, may make an order that-
(i) any part of th e pension interest of that member which, by virtue of
subsection (7), is due or assigned to the other party to the divorce action
concerned, shall be paid by that fund to that other party when any pension
benefits accrue in respect of that member;
(ii) the registrar of the court in question forthwith notify the fund concerned
that an endorsement be made in the records of that fund that that part of the
pension interest concerned is so payable to the other party and that the
administrator of the pension fund furnish proof of such endorsement to the
registrar, in writing, within one month of receipt of such notification;
(b) ……”
18] Section 1(1) of the Act defines the term ‘pension interest’ as follows:
‘Pension interest’, in relation to a party to a divorce action who-
(a) is a member of a pension fund (excluding a retirement annuity fund),
means the benefits to which that party as such a member would have been
entitled in terms of the rules of that fund if his membersh ip of the fund would
have been terminated on the dat e of the divorce on account of his resignation
from his office;
(b) …..’
19] In terms of section 7(7) of the Divorce Act it provides that, for the purpose of
determining the patrimonial benefits to which the parties are entitled upon divorce,
the pension interest of a member spouse is deemed to form part of the joint estate
and must be shared accordingly between the parties.
20] Therefore, by operation of law, the pension interest of the member spouse as
at date of divorce is deemed to form part of the parties’ joint estate for the purpose of
determining the parties’ patrimonial benefits and division thereof, and as such no
specific order is required in terms of s 7(7)(a).10
21] The joint estate of the parties thus necessarily includes the pension interest of
either party as contemplated in s 7(7)(a) of the Act and falls to divided, together with
the remainder of the parties’ joint estate, at the hands of the liqu idator to be
appointed to assist the parties in making their determination.
22] It is on this basis that the respondent contends that no specific reference in
the divorce decree so issued needed to be made by Munzhelele J, as by operation
of law, the pens ion interest of a member spouse as at dat e of divorce forms part of
the joint estate.
23] As per the founding affidavit, the applicant merely asserts that there was an
omission made in the decree of divorce to mention one party’s pension interest while
not referring to the others.11
24] It is significant that the founding affidavit does not allege that this omission
was a mistake or error which warrants a variation to be made by this court.
25] As already mention ed, the divorce order was gr anted unopposed as the
applicant’s defense had been struck out and in the absence of any rebuttal, this
Court must accept the version of the respondent asserted before this Court.
24] Our Courts have further recognized that fai lure to specifically menti on a
pension interest while ordering division of the joint estate does not mean the pension
will be excluded and in circumstances where the parties are married in community of
property, each spouse is automatically entitled to 50 % of the joint estate, inc luding
the other’s pension interest, unless excluded by agreement or specific court order. In
the present matter this had not been the position.
10 Ndaba v Ndaba 2017 (1) SA 342 (SCA).
the present matter this had not been the position.
10 Ndaba v Ndaba 2017 (1) SA 342 (SCA).
11 Founding Affidavit para 3.3 page T6
25] Therefore, the failure to explicitly refer to one party’s pension interest in th e
divorce decree particu larly where the other party’s pension interest is mentioned is
not a prima facie indication of a patent error, especially where both parties had
pension interests.
26] On this basis, this Court is not persuaded that a variation of the divorce
decree is warranted in terms of rule 42(1) and consequently the application is
dismissed with costs.
27] As per the counterapplication the respondent seeks the appointment of a
liquidator of the joint estate of the parties. This is so as the applicant has been in
occupation of the parties jointly owned immovable property since 2018 and the
respondent has derived no benefit from the property, despite being jointly liable for
the expenses and debts in relation to the property.12
28] As the parties cannot agree on how to divide their joint estate and there is no
prospect of them reaching agreement on this aspect, either one of them or both of
them, may approach the courts for the appointment of a receiver and liquidator.13
29] This is precisely the step taken by the respondent in the present case and the
court assessing such request will exercise a discretion having regard to the nature of
the estate and the extent of the dispute as to the division.
Appointment of liquidator
30] In considering an application for the ap pointment for a liquidator there are at
least two considerations to be taken into account by the court:
30.1 The joint estate must be of such a nature that it justifies the
appointment of a Liquidator;14 and
12 Para 9.2 of the answering affidavit, p T2-7; Para 21.1 of the answering affidavit, p T2-11.
13 Para 6 of the answering affidavit, p T2 -6, Para 9 of the answering affidavit, p T2 - 7; Para 11 of the
answering affidavit, p T2-9.
30.2 the parties must be unable to reach an ag reement regarding the
manner of division/termination of the jointly owned assets.
31] The matter of Revill v Revill 15 is apposite in this regard wherein it was held
that:
‘In my opinion… the Applicant is entitled to move th is court for the
appointment of a receiver, unless the Respondent agrees with the Applicant in
regard to the appointment of a receiver.’
32] In the same matter it was further held that:
‘The true position is that no man can be a judge in his own cause. In other
words, neither party can take upon himself or herself the right to divide the
joint estate. In fact, no party in any form of community is entitled to divide the
common property and the other party be forced to accept that position. Once
either of the parties has no faith in the bona fides of the other party he is
entitled to demand the appointment of a receiver.’16
33] In Gillingham v Gillingham, Innes CJ held as follows:17
“The law governing this matter seems to me perfectly clear. When two
persons are married in community of property a universal partnership in all
goods is established between them. When a court of competent jurisdiction
grounds a decree of divorce that partnership ceases. The question then arises,
who is to administer what was originally the joint property, in respect of which
both spouses continue to have r ights? As a general rule there is no practical
difficulty, because the parties agree upon a division o f the estate, and
generally the husband remains in possession pending such division. But
where they do not agree the duty devolves upon the Court to divid e the estate,
14 Schoeman v Rokeby Farming Co (Pty)Ltd 1972 (4) SA 201 (N) at 206D-G.
15 1969 (1) CPD 325 at 326C-D.
16 326 E-F.
17 1904 TS 609.
and the Court has power to a point some person to effect the division on its
behalf. Under the general powers which the Court has to appoint curators it
may nominate and empower someone (whether he is called liquidator,
receiver, or curator…) to collect, realise, and divide the estate. And that that
has been the practise in South African courts is clear.”
34] In the matter P v P18 it was held that:
“In Van Onselen NO v Kgengwenyane Comrie J said that in exercis ing the
power to divide the joint estate, or to supervise its division, the courts tended
to apply the rules developed for the dissolution of commercial partnerships. It
seems plain that in the absence of agreement between the parties the court
will appoint a liquidator without inquiring why the parties have not agreed on a
division. It is the absence of a n agreement that is relevant, not whether the
parties have made a good enough effort it to agree.”
35] As already mentioned, in casu the parties are un able to reach an agreement
regarding the manner in which their jointly owned property is to be divided. Given
this reason, either of the parties would be entitled to apply to Court for the
appointment of a liquidator and this is the precise step elected by the respondent.
36] Once so appointed, the liquidator in order for a joint estate to be divided
equally, would first have to determine the net value of the joint estate. This is done
by deducting all liabilities from their assets.
37] Once the net value of the joint estate is determined, division thereof normally
takes place by [1] D ividing the assets physically, and/or [2] selling the assets and
dividing the proceeds and/or [3] offsetting assets against others.
38] On behalf of the respondent it was submitted that the abovementioned
process cannot take place fairly if the applicant is allowed to withdraw money from
the respondents’ pension fund, particularly under circumstances where the
18 [2016] ZAFSHC 13.
respondent is unable to ascertain whether the applicant has paid the bond and other
expenses in respect of the parties jointly owned immovable property.
39] As the answering affidavit to the counterapplication had been disallowed, no
rebuttal evidence has been placed before this Court and consequently the
respondent is entitled to seek the appointment of a liquidator to facilitate the division
of the joint estate as of right.
40] Such an appointment will facilitate and secure the equal division of the parties’
joint estate as ordered by the court on 12 April 2023.
Costs
41] As to the costs to be awarded in respect of the counterapplication, the
respondent is the successful party and therefore, costs should follow the result.
Order
42] The main application is dismissed with costs, including costs of counsel on
scale B.
43] In respect of the counterapplication:
43.1 Mr. Phillip Jordaan, of Divorc e Settlement Services, or a person to be
determined by the above Honourable Court, is appointed as receiver and/or
curator and/or liquidator of the joint estate of the above parties with the
powers and duties as appear from annexure “MT3” annexed hereto.
43.2 The costs associated with the appointment and carrying out of the
functions of the liquidator to be costs in the liquidation of the parties’ joint
estate.
43.3 The respondent is further ordered to pay the costs of the
counterapplication unsuccessfully opposed on scale B.
C. COLLIS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
APPEARANCES
Counsel for the Applicant: Adv. A.E.B Koalepe
Instructed By: Messrs Serabele NL Attorneys
Counsel for the Respondent: Adv. Z. Marx du Plessis
Instructed By: Shapiro & Ledwaba Inc.
Date of Hearing: 24 July 2025
Date of Judgment: 16 September 2025
"MT3"
POWERS AND DUTIES OF LIQUIDATOR:
1. The Liquidator shall take control over the joint estate and shall enjoy all the
powers as adm inistrator hereof. Without derogating from the generality of a
foregoing, the Liquidator shall also be entitled:
1.1 to accumulate details of all the assets, m ovable or immovable assets,
tangible or intangible which form part of the joint estate;
1.2 to accumulate details of all liabilities of the joint estate;
1.3 to make all investigations necessary and in particular to obtain from the
parties all information with regard to the assets and liabilities of the joint estate;
1.4 to obtain information and copies regarding the financial affairs of the
parties, including bank accounts, bank statements and but not limited to any
information or interest relating to o r interest in any long-term insurance policy,
collective investment scheme, endowment policies, annuity policies and
retirement annuity policies or any other financial products or services, from
bank managers and/or managers of any long -term insurance, un it trust
manager or any other financial institution, which includes all insurance
companies and not limited to the following insurance companies, Old Mutual,
Liberty, Metropolitan, Sanlam, Discovery, Momentum, Professional Provident
Fund (PPS) with regard to the assets and liabilities of the joint estate;
1.5 to obtain information and/or balance shee ts and copies from the
auditors or any other person but not limited to any information or interest
relating to or interest in any long -term insurance policy, c ollective investment
scheme, endowment policies, annuity policies and retirement annuity policies
or any other financial products or services, from bank managers and/or
managers of any long -term insurance, unit trust manager or any other
financial institution, which includes all insurance companies and not limited to
the following insurance companies, Old Mutual, Liberty, Metropolitan, Sanlam,
Discovery, Momentum, Professional Provident Fund (PPS), who may have
knowledge of the financial affairs of any comp anies, close corporations, trusts
or businesses in which the Plaintiff, the Defendant and/or the joint estate of
the parties may have an interest;
1.6 to obtain information and copies of the financial statements of any
companies, close corporations, trusts or businesses in which the Plaintiff, the
Defendant and/or the joint estate of the parties may have an interest;
1.7 to inspect the books of accounts of any companies, close corporations,
trusts or businesses in which the Plaintiff, the Defendant and/or joint estate of
the parties may have an interest;
1.8 to physically inspect the assets of the j oint estate and to compile a full
inventory of all the assets referred to in paragraph 1.1 above;
1.9 to obtain sworn valuations of all the assets referred to in paragraph 1.1
above of which costs will be for the account of the joint estate;
1.10 to interrogate or interview the Plaintiff and the Defendant and any other
person in order to give effect to paragraphs 1.1 and 1.2 above;
1.11 to subpoena the Plaintiff, the Defendant and witnesses out of the
above the appropriate forum for purposes of interview ing and/or interrogating
such persons at a date, place and time to be determined by the Liquidator and
to ensure that the proceedings in terms hereof are recorded in order to give
effect to paragraphs 1.1 and 1.2 above;
1.12 to inspect all books, vouchers, cheques, deposit slips, bank statements
and, in general, all documents in possession of any person, for the purposes
of giving effect to paragraphs 1.1 and 1.2 above;
1.13 to make and retain copies, at his discretion, of all the documents and
books referred to in paragraph 1.12 above;
1.14 to submit, after completion of his duties referred to in paragraphs 1.1
to 1.13 above, a full report of his investigations to both the Plaintiff and the
Defendant;
1.15 to distribute the nett assets of the joint esta te in accordance wi th
paragraphs 2 and 3 hereunder between the Plaintiff and the Defendant on
such basis as may be agreed upon between them, alternatively if no such
agreement can be reached, to sell the assets of the joint estate either by
public auction or private treaty ( the Plaintiff and the Defendant having a right
also to bid) and thereupon to divide the nett proceeds between the Plaintiff
and the Defendant in accordance with the paragraphs 2 and 3 hereunder;
1.16 to engage the services of any suit able qualified person or persons to
assist him in determining the proper value or whereabouts of any of the
assets of the joint estate and to pay such person or persons the reasonable
fees which may be charged by him;
1.17 to afford both the Plaintiff and t he Defendant personally the opportunity
to make recommendations to him about any matter relevant to his duties and
to this order and to the identity of any purchaser as well as the purchase price
of any asset, including, but no necessarily limited to:
1.17.1 the time and/or manner in which any assets shall be realised;
1.17.2 the price for which any assets should be realised; and
1.17.3 the sequence in which any assets should be realised;
1.18 to give due considerati on to the wishes of the parties pursuan t to the
representations made by them and make such decisions in respect thereof as
he may deem fit;
1.19 to sell any assets to either the Plaintiff or the Defendant for a price that
he deems to be the true market price of such assets;
1.20 to sign any d ocuments as may be necessary to effect the transfer of
any assets sold from the person in whose name it is registered to the
purchaser thereof;
1.21 not to realise any movable assets excluding shares, unit trusts and
insurance policies without giving both the Plaintiff and the Defendant ten days'
notice of his intention to do so;
1.22 to give both parties a first right to purchase any such assets as
envisaged in paragraph 1.21, in the case of sale by treaty at the sa me price
he is able to obtain from a bo na tide third party, or in the case of a public
auction, at a better price than that offered by a bona tide third party;
1.23 to apply to the appropriate forum for any further directions as he shall
or may consider necessary;
1.24 to institute legal proc eedings against any persons for the delivery to
him of any assets, deeds or documents of the joint estate in whatever Court it
shall be appropriate to bring such proceedings;
1.25 to instruct an d appoint attorneys and/or counsel to institute
proceedings on his behalf for the for the purposes of obtaining delivery of any
assets alleged to be vested in the joint estate and to obtain such other or
alternative relief as the circumstances may require, the costs of Counsel
and/or attorneys to be paid by the join t estate in accordance with the
principals enounced in Muller v The Master and Others, 1992 (4) SA 277 (T);
1.26 to collect debts due to the joint estate unless the same be disposed of
by sale;
1.27 to defend any action launched against the joint estate;
1.28 to pay the liabilities of the joint estate;
1.29 to pay his reasonable fees and to apportion such fee s between the
parties in the same proportion as they are entitled to the assets of the joint
estate;
1.30 to direct in terms of Section 7 (8) of the Divorce Act No. 70 of 1979 that
a portion not exceeding 50% of a party's pension interest as at date of di vorce
be paid to the other party as and when the pension benefits accrue to the
party entitled to these and to require the pension fund concerned to endorse
its records accordingly;
1.31 to obtain full particulars of all the Plaintiffs and the Defendant's
insurance policies from all insurance companies which includes and not
limited to the following insurance companies, Old Mutual, Liberty, Metropolitan,
Sanlam, Discovery, Momentum, Professional Provident Fund (PPS) including
but not limited to life polici es, endowment policies, annuity policies and
retirement annuity policies from the underwriters thereof, alternatively from
such underwriters' duly authorised agents and to deal with such policies in his
discretion in order to enable the Liquidator to give effect to the provisions of
paragraphs 2 and 3 below;
1.32 to instruct banks and/or financial institutions to deal with investments
and bank accounts as the Liquidator may in his discretion deem necessary in
order to protect the rights of one of the parti es or both parties in order to give
effect to the provisions of paragraphs 2 and 3 below;
1.33 to allocate, in his discretion, both assets and liab ilities between the
parties.
2. The division of the nett assets referred to in parag raph 1.15 above shall be
subject to the protection of the rights and claim of secured and preferent creditors of
the joint estate.
3. The division of the nett assets referred to in paragraph 1.15 above shall be in
equal proportions between the Plaintiff and the Defendant.
4. Any losses suffered by the joint estate as a result of the wrongful behaviour of
the parties in dissipating the joint estate's asse ts, shall be borne exclusively by such
party and a distribution and division of the assets of the joint estate or the proc eeds
thereof, as the case may be, shall accordingly be subject to adjustment in
accordance with the Liquidator's discretion.
5. The Liquidator is not required to find security of his administration.