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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED:
3 October 2025
CASE NO: 21/1315
In the matter between:
P[...], J[…] D[…] (Born N[…]) Plaintiff
and
P[...], K[...] Defendant
In re:
P[...], J[…] D[…] (Born N[…]) Applicant
and
P[...], K[...] Respondent
And in re:
P[...], K[…] Applicant
2
and
P[...], J[…] D[…] (Born N[…]) Respondent
JUDGMENT
SEGAL AJ:
[1] There are two applications before court which require determination.
The one application is brought by the wife, Mrs P in which she is the
Applicant and Mr P is the Respondent. In the other application Mr P is
the Applicant and Mrs P is the Respondent. To avoid confusion and
for the sake of convenience I refer to the parties as Mr P and Mrs P.
[2] Mr P and Mrs P were married in community of property on 30
November 1991. They had been separated for approximately 14 years
when Mrs P obtained an order for inter alia, a decree of divorce and an
order that 50% of Mr P’s pension and provident interest be paid to
her.
[3] It was subsequently established that Mr P had no knowledge of the
fact that the action had been instituted and that the return of service
from the Sheriff reflecting service on Mr P had been fabricated.
[4] Mr P then approached the court to rescind the divorce order. He
ultimately obtained an order rescinding only paragraphs 3 and 4 of
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the divorce order dated 10 September 2021, namely the provision that
50% of Mr P’s pension fund interest held at Alexander Forbes be paid
to Mrs P and the order for rehabilitative maintenance to be paid to
Mrs P. Accordingly, the parties remain divorced and the rescission did
not affect the order granting the decree of divorce.
[5] Subsequently Mrs P sought details from Mr P in respect of the said
pension fund and Mr P refused to provide any such information or
documentation. The parties refer interchangeably to the pension fund
/ pension interest and provident fund. There is no clarity from Mr P
regarding whether the fund is a pension fund or a provident fund or
an investment fund.
[6] Mr P filed a Plea to the Plaintiff’s claim as well as an amended Plea in
which he baldly denied that he was still a member of the Alexander
Forbes pension fund.
[7] It was unclear to Mrs P when Mr P had indeed ceased being a member
of the pension fund, whether this had occurred before or after the
grant of the decree of divorce and accordingly Mrs P’s attorneys
dispatched a Notice in terms of Rule 35(3) on 12 January 2023,
seeking documentation in relation to the pension fund.
[8] Mr P replied in March 2023 essentially confirming; (a) that he no
longer belonged to a “provident fund” and that he was not in
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possession of nor could he provide to Mrs P a statement reflecting the
value of his provident fund as at the date of the grant of the decree of
divorce; (b) that he did not have a statement reflecting the value of his
“pension interest” on date of withdrawal; (c) that he did not have a
statement reflecting the value of his “provident fund” as at date of
withdrawal if it was withdrawn; and ( d) that he did not have proof of
investments made by him with the monies withdrawn from the
“pension interests” and provident fund if withdrawn.
[9] A trial date was allocated. In consequence of Mrs P having essentially
been stonewalled by Mr P, it became necessary for the trial to be
postponed as Mr P adopted the attitude that Mrs P had the duty to
begin and bore the onus of proving the existence of the pension fund
but, simultaneously refused to provide any of the information or
documentation sought by her in relation to this matter which fell
squarely within his knowledge.
[10] After the trial was postponed and on 1 August 2024, Mrs P caused a
Request for Further Particulars for Trial to be served on Mr P’s
attorneys and in that Request for Further Particulars the following
questions were addressed in relation to paragraph 2.3 of the
Defendant’s amended Plea namely:-
10.1 when did the Defendant (Mr P) withdraw his pension from
Alexander Forbes and to which entity was it moved?
5
10.2 what was the value of Mr P’s pension benefit alternatively of the
pension preservation fund further alternatively investment at
the entity to which his pension was moved on the 10 th of
September 2021?
[11] When Mr P failed to reply to the Request for Further Particulars, Mrs
P brought the application to compel him to do so, on 11 October
2024, in terms of Rule 21(4), seeking an order that; (a) Mr P be
ordered to furnish the Further Particulars as requested by her on 1
August 2024 within 10 days; and (b) should he fail to comply with the
order that she may on the same papers duly supplemented, set the
matter down for the dismissal of Mr P’s case and counterclaim in the
main action.
[12] Mr P objected to providing these further particulars and on 6
November 2024, he (as Applicant) launched an application in which
he claimed:-
12.1 that Mrs P’s application to compel him to reply to her Request
for Further Particulars for Trial be stayed;
12.2 an order that a separation of issues be granted as envisaged by
Rule 33(4) of the Uniform Rules of Court “in that the forfeiture
is to be determined separately”; and
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12.3 that Mrs P make payment of the costs of suit if defended.
[13] Mr P does not specify precisely what issues are to be separated (as a
claimant for a separation is obliged to do) and does not indicate what
precise issues will be heard at the separated trial and what precise
issues will be heard at the trial that follows. His Notice of Motion is
woefully inadequate.
[14] It seems to me that the only live issues that the trial court needs to
determine are:-
14.1 Mrs P’s claim that Mr P make payment to her of 50% of the
value of his pension / provident fund / investment fund as at
date of divorce and Mr P’s claim that Mrs P forfeit the benefits of
that pension fund, contending, that she would be unduly
benefitted if he made payment to her of his 50% share in the
pension / provident / RA / investment fund as at date of
divorce; and
14.2 The second issue in dispute between the parties is Mrs P’s claim
for rehabilitative maintenance from Mr P by way of payment of
Mrs P’s medical aid premiums for 24 months following on the
grant of the divorce.
[15] During argument it appeared to me that Mr P was of the view that if
he is successful in his application for a separation of issues, he would
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not be obliged to respond to Mrs P’s Request for Further Particulars,
this on the basis that “the issue of forfeiture should be dealt with first”.
[16] I asked the parties to file supplementary Heads of Argument in
relation to inter alia, whether a court other than the court granting
the decree of divorce would be permitted to determine the question of
a forfeiture of benefits, having regard to the provisions of Section 9 of
the Divorce Act.
[17] It seemed to me to be an important issue to clarify in light of the fact
that it was common cause that the decree of divorce which had been
granted had not been rescinded. Counsel for both parties prepared
supplementary Heads of Argument which were of great assistance to
the court and for which the court thanks them.
[18] Ordinarily only the court granting the decree of divorce can grant a
forfeiture order. As confirmed in the matter of Mothibedi Alfred
Phokobye v Felicia Mosima Adelaide Nkumishe.
1
[19] Section 9 of the Divorce Act provides “When a decree of divorce is
granted on the ground of irretrievable breakdown of a marriage, the
court may make an order that the patrimonial benefits of the marriage
were forfeited by one party in favour of the other, either wholly or in
1 (2024) Full Bench Decision of Gauteng High Court, 29 August 2024 – Case Number
A151/2023
8
part, if the court, having regard to the duration of the marriage, the
circumstances which gave rise to the breakdown 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 benefitted.”
[20] There are however exceptions to this Rule.
[21] In the matter of MJL v LOL 2 the court considered the question of
whether, in the face of a partial recission of a divorce order it was
permissible to determine proprietary relief and whether the grant of a
decree of divorce was severable from such proprietary relief.
[22] The court confirmed that it is in the interest of justice to permit the
previously divorced status of the parties continue while affording a
party the opportunity to prosecute other proprietary aspects of the
claim at a later date.
[23] In its judgment in the matter of MJL v LOL, the court referred with
approval to the matter of Mathepe Mildred Tojo and Paladi Piet
Molabe and Eskom Provident Fund
3 as also to the matter of M v M 4
and to the matter of D v D 5, in which matters the courts had
2 (22341/19; A288/2023) [2025] ZAGPPHC 331 (27 March 2025)
3 ZAGPP 16 C 666 (26 July 2006)
4 (2007) [2011] ZAGPPHC / 155 (27 May 2011)
5 A3079 [2016] ZAGPJHC 31 (12 February 2016)
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respectively inter alia , confirmed that (a) a partial recission of a
divorce order was permissible; (b) it would serve the interests of
justice to craft an order that permits in effect the previously divorced
status of the parties to continue while affording a party to prosecute
the other aspects of the claim; (c) in such instances it is permissible
for a court to determine a dispute in relation to the question of a
forfeiture of benefits after the decree of divorce had been granted.
SHOULD MRS P’S APPLICATION TO COMPEL MR P TO REPLY TO HER
REQUEST FOR FURTHER PARTICULARS FOR TRIAL BE STAYED?
[24] Mr P contends that Mrs P’s application to compel Further Particulars
for Trial should be stayed, because “it is neither necessary nor
required to discover the documents from his pension fund and/or
pension interest as he is claiming a forfeiture of benefits, and should
the forfeiture be granted, Mrs P will not be entitled to such information,
should the forfeiture not be granted the division of the estate will be
ordered by the court as it deems fit”.
[25] I cannot agree with this argument which is not only devoid of merit
but also untenable. When I enquired of counsel for Mr P during the
argument how a court determining the issue of the forfeiture could
make such a determination in the absence of knowledge of the value
of:-
25.1 the pension interest;
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25.2 the remainder of the joint estate; and
25.3 the value of the assets and liabilities that each party had agreed
to retain.
Counsel indicated to me that the court hearing the forfeiture
case could order that a percentage of the pension fund be
forfeited. These submissions too are untenable for it would not
be possible for a court determining the question of forfeiture to
be placed in a position to make a decision in relation to
forfeiture and determine the question of undue benefit without
the financial position of each party being disclosed to the court
and to the other party. Part of the court’s consideration would
be the identification and quantification of the assets to be
forfeited.
[26] Mr P’s efforts to delay the provision of this information are
transparent. There is no justification in fact or in law for Mr P not to
provide all relevant information and documentation pertaining to his
financial position more especially the details concerning his pension
interest and what has become of it to Mrs P. This duty is manifest. He
cannot obscure Mrs P’s or the court’s visibility into all of his financial
affairs as they were on the date of the grant of the decree of divorce.
[27] Whilst the court accepts that Mr P is entitled to prosecute his
11
forfeiture claim, given that he was not afforded the opportunity to do
so when the decree of divorce was granted, it does not follow that in
circumstances where a forfeiture claim is to be prosecuted, neither
party is obliged to provide the court with details of the joint estate as
it existed as at the date of the grant of the decree of divorce including
its assets and liabilities, and their income and expenses.
[28] The court determining the forfeiture claim cannot sensibly, fairly or in
the interests of justice execute its duty to determine whether or not
there should be a forfeiture and if so, what precisely should be
forfeited, without being in possession of the financial information of
both parties. Accordingly, there is no merit in Mr P’s contention that
he should not be compelled to reply to Mrs P’s Request for Further
Particulars for Trial immediately and that it should wait until after the
question of forfeiture has been determined.
[29] Indeed, a court would be hard-pressed to make such a finding blindly
and in the absence of all the necessary information.
[30] As such, irrespective of whether Mr P succeeds in his claim in terms
of Rule 33(4) for a separation, (which I deal with below) there is no
basis on which Mrs P should not be successful in securing an order to
compel Mr P to reply to her Request for Further Particulars for Trial. I
would venture to say that this information is within the peculiar
knowledge of Mr P and there is no way for Mrs P to secure such
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information, nor should she be obliged to do so other than from Mr P.
[31] The duty to discover in divorce actions and for litigants to be
transparent and act in good faith cannot be sufficiently emphasised.
[32] The dicta of Gorven AJJA (as he was then) in the matter of DEB v
MGB6 insofar as it pertains to Mr P’s obtuse attitude towards
disclosure of the information and documentation in respect of his
pension interest bears repetition.
[33] “[38] Before arriving at the order to be made it is appropriate to
comment on the manner in which the Defendant approached the
litigation on the accrual claim…”
[34] “[39] The attitude of many divorce parties, particularly in relation to
money claims where they control the money can be characterised as
“catch me if you can”. These parties set themselves up as immovable
objects in the hopes that they will wear down the other party. They use
every means to do so. They fail to discover properly, fail to provide any
particulars of assets within their peculiar knowledge and generally
delay and obfuscate in the hope that they will not be “caught” and have
to disgorge what is in law due to the other party.”
[35] In the circumstances, I am persuaded by Mrs P that an order should
be granted compelling Mr P to provide her with a response to her
6 (700/2013) [2014] ZASCA 137 (25 September 2014)
13
Request for Further Particulars for Trial.
[36] It goes without saying that the relevant documentation in relation to
the pension interest ought to be discovered by Mr P as he is obliged to
discover all relevant documents in relation to his financial
circumstances and the issues of forfeiture and rehabilitative
maintenance. If he is indeed not in possession of the relevant
documentation as he contends in his reply to Mrs P’s Notice in terms
of Rule 35(3), there is no-one better placed than he to procure such
evidence, to contact the relevant pension / provident funds and
obtain the relevant information and documentation and then discover
it.
SHOULD THE ISSUE OF MR P’S CLAIM THAT MRS P FORFEIT THE
BENEFITS OF MR P’S PENSION FUND BE SEPARATED FROM THE
REMAINING ISSUES IN DISPUTE?
[37] The manner in which Mr P has framed his relief in his Notice of
Motion is not only vague but unhelpful. This is so because he does
not set out what the remaining issues for determination will be in the
event that he is successful in securing an order in terms of Rule 33(4).
[38] From what I can gather, the only issues in dispute are:-
38.1 the question of whether Mrs P should forfeit the benefits of Mr
P’s pension fund;
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38.2 the question of whether Mr P should make payment of Mrs P’s
medical aid premium for a period of two years after the grant of
the decree of divorce; and
38.3 the question of the costs of suit.
[39] I cannot see that there are any remaining issues in dispute and to the
extent that I am incorrect, Mr P was dutybound to set out in detail
precisely what those remaining issues are.
[40] To the extent that the three issues identified by me above are the only
issues in dispute, there is no basis upon which an order for a
separation could be justified. Such an order:-
40.1 will not materially shorten the proceedings;
40.2 will require similar evidence to the evidence that would be led in
relation to interim maintenance resulting in a duplication of
evidence;
40.3 would not be convenient to the court or the parties;
40.4 would not be expedient;
40.5 would result in unnecessary delay and wasted costs;
40.6 would not substantially curtail the proceedings and would in
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fact increase the costs of the litigation resulting in the parties
having to duplicate evidence in different proceedings.
[41] I cannot fathom the basis upon which Mr P would contend that two
separate trials should be run. One relating to whether or not Mrs P
should forfeit the benefits of his pension fund and two, whether or not
interim maintenance should be paid. These two issues should most
certainly be determined in one single hearing for the convenience of
the court and the parties. To permit two separate trials to run would
be ludicrous.
[42] Mr P’s separation application is entirely ill-conceived and has served
only to delay the finalisation of the divorce proceedings further. There
have already been extensive delays in finalising this divorce including ;
(a) the parties separation for 14 years before action was instituted; (b)
Mrs P having used the services of a person who obtained a fraudulent
return of service when in truth the Summons and Particulars of Claim
had not been served on Mr P; (c) the proceedings to partially rescind
the proprietary portion of the divorce order; (d) the subsequent trial
being postponed; and (e) Mr P’s refusal to reply to Mrs P’s Request for
Further Particulars for Trial and his response thereto namely the
application for a stay of Mrs P’s application to be compel and his
application for a separation of issues.
[43] Enough time has been wasted in this matter, and the matter should
be brought to finality as soon as practicably possible.
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[44] In the circumstances, I grant the following order:-
In Mrs P’s application
44.1 Condonation is granted for the late filing of Mrs P’s Rule 21(4)
application.
44.2 Mr P is ordered to furnish the further particulars as required by
the Plaintiff’s Request for Further Particulars for Trial dated 1
August 2024 within 10 days of the date of the grant of this
order.
44.3 Should Mr P fail to comply with this order, Mrs P may, on the
same papers duly supplemented set the matter down for the
dismissal of Mr P’s Plea and Counterclaim in the main action.
44.4 The costs of Mrs P’s application are to be paid by Mr P, such
costs to include the costs of counsel on Scale B.
In Mr P’s application
44.5 Mr P’s application to stay Mrs P’s application to compel is
dismissed.
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44.6 Mr P’s application for a separation of issues in terms of Rule
33(4) of the Uniform Rules of Court and for the issue of the
forfeiture of benefits to be determined separately is dismissed.
44.7 Mr P is ordered to make payment of Mrs P’s costs of the
application to stay and the application in terms of Rule 33(4),
such costs to include the costs of counsel on Scale B.
_______________
SEGAL AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Delivered: This judgment was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation to the
Parties/their legal representatives by email and by uploading it to the
electronic file of this matter on CaseLines. The date for hand-down is deemed
to be on 3 October 2025.
Heard on: 31 July 2025
Delivered on: 3 October 2025
Appearances:
Adv AM Raymond:
Denton Incorporated Attorneys: for the Applicant
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Adv X van Niekerk:
Schoeman Incorporated Attorneys for the Respondent