SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: A178/2024
In the matter between
J[...] M[...] M[...] APPELLANT
and
M[...] R[...] M[...] FIRST RESPONDENT
TRANSNET RETIREMENT FUND SECOND RESPONDENT
Neutral citation: M[...] v M[...] (A178/2024) [2025] ZAFSHC 334 (28 October 2025)
Coram: REINDERS ADJP and CHESIWE J
Heard: 12 May 2025
Delivered: This judgment was handed down in open court on 28 October 2025 and
electronically by circulation to the parties' representatives by email, and released to
SAFLII.
Summary: Appeal - divorce - order to vary th e initial divorce order in relation to the
division of the pension fund benefit - the applicability of the expressio unius est
exclusio alterius principle.
ORDER
The appeal is dismissed.
JUDGMENT
Chesiwe J (Reinders ADJP concurring)
[1] This is an appeal against an order made by the Regional Court, Bloemfontein
on 8 December 2023. The appellant was the defendant in a divorce action in that
court, whilst the first respondent was the plaintiff. On an undefended basis, the trial
court on 19 January 2023, granted a decree of divorce together with ancillary relief.
At the request of the first respondent and by way of an opposed application (the
application), the Regional Magistrate on 8 December 2023 a mended the said order.
It is this order for amendment that is appealed by the appellant. I might mention that
the second respondent in this appeal, Transnet Retirement Fund (Transnet}, was the
first respondent in the application.
[2] The order granted on 19 January 2023 ordered the following:
'1. That the bonds of marriage subsisting between the Plaintiff and the
Defendant be and are hereby dissolved.
2. Divison of joint estate.
3. .. .
4. .. .
5. In terms of sec 7(8)(a)(i) of the Divorce Act 70 of 1979 ,(50%) of the
Plaintiffs pension interest in the GOVERNMENT EMPLOYEES PENSION
FUND due or assigned to the Defendant is to be paid to him when any such
pension benefits accrue to the Plaintiff.
6. In terms of sec 7(8)(a){ii) of the Divorce Act 70 of 1979 , an
endorsement should be made on the records of the abovementioned Pension
Fund that (50%) of the pension interest of the Plaintiff is payable to the
Defendant.
7. In terms of sec 37(D)(4)(b)(ii) of the Pensions Funds Act 24 of 1956 the
abovementioned Pension Fund is ordered to pay an amount equal to (50%) of
the value of the Pension benefit as on the date of divorce: DIRECTLY to the
defendant in accordance with the rules and regulations of the said Pension
Fund.'
[3] The order dated 8 December 2023 supplemen ted the aforementioned order.
The Regional Court magistrate, in a comprehensive written judgment, furnished her
reasons therefore (to be dealt with herein below), and para 37 thereof reads:
'Accordingly, the court order dated 19 January 2023 is varied in t hat the
following is inserted after paragraph 7 thereof:
1. In terms of Section 7(8)(a)(i) the Divorce Act 70 of 1979, 50% of the
Defendant's pension interest in the TRANSNET RETIREMENT FUND with
identity number 7[...], due or assigned to the Plaintiff is to be paid to her when
any such pension benefits accrue to the Defendant.
2. In terms of Section 7(8)(a) (ii) of the Divorce Act 70 of 1979, an
endorsement should be made on the records of the above -mentioned
Pension Fund that 50% of the pension interest of the Defendant with the
above-mentioned membership number is payable to the Plaintiff.
3. in terms of section 37D(4)(b)(ii) of the Pension Fund Act 24 of 1956 the
above -mentioned Pension Fund is ordered to pay an amount equal to (50%)
of the va lue of the Pension benefit as on the date of divorce: DIRECTLY to
the Plaintiff in accordance with the rules and regulations of the said Pension
Fund.'
[4] The court order of 8 December 2023 effectively supplemented the original
order in that Transnet was ordered and/or instructed how to deal with the appellant's
part of his pension fund.
[5] As mentioned, it is against the aforementioned amended order that the
appellant appeals. It is noteworthy to mention that notwithstanding prima facie
service of the no tice of set down upon the plaintiff's attorneys in the trial court, there
was no appearance before us on behalf of the first respondent. The second
respondent likewise did not oppose the appeal. This, however, does not mean that
the appeal should automatic ally succeed. We were provided with able heads by
the appeal should automatic ally succeed. We were provided with able heads by
counsel appearing for the appellant, for which we are indebted.
[6] The notice of appeal relied on various grounds. It was averred, amongst
others, that the trial court: erred by finding that the parties' i ntention was to divide the
assets of the joint estate; failed to have proper regard to the wording of the court
order dated 19 January 2023 and misdirected itself by accepting that para 2 of the
court order of 19 January 2023 made provision for the entire joint estate (including
the parties respective pension funds). It was further averred that paras 5 to 7 of the
court order, dated 19 January 2023, militated against an interpretation that required
the division of the entire joint estate. Relying on the maxim 'expressio unius est
exclusio alterius' it was argued that by specifically including the appellant's right to
share in the first respondent's pension fund in the court order, it expressly excluded
the first respondent's corresponding interest in the appellant's pension fund.
[7] Section 7(7)(a) of the Divorce Act 70 of 1979 (the Divorce Act) provides that:
'(7)(a) In the determination of the patrimonial benefits to which the parties to
any divorce action may be entitled, the pension interest 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 para graph (a), in a
previous divorce-
(i) was paid over or awarded to another party; or
(ii) for the purposes of an agreement contemplated in subsection (1), was
accounted in favour of another party.
(c) Paragraph (a) shall not apply to a divorce action in res pect of a
marriage out of community of property entered into on or after 1 November
1984 in terms of an antenuptial contract by which community of property,
community of profit and loss and the accrual system are excluded.'
[8] The court in C.N.N v N.N1 made a clear distinction in respect of pension fund
interest and pension fund benefits by holding as follows:
interest and pension fund benefits by holding as follows:
1 C.N.N v N.N [2023] ZAGPJHC 208; 2023 (5) SA 199 (GJ).
'[19] ... The term 'pension interest' is technically defined in such a way as to
characterise the contributions plus investments held by funds on b ehalf of
their member as their benefits differently depending on events that entitle
member spouses to claim these benefits. If the member spouse is entitled to
receive his or her benefit any time before the divorce due to dismissal,
retirement, retrenchment, or resignation as prescribed by the rules of his or
her fund, this benefit is referred to as a pension benefit and does not
constitute part of the member's estate for as long as it is held by the fund. If
the member receives the benefit during the marr iage, such benefit will
constitute part of his or her joint estate if married in community of property or
growth of his or her estate if married with the accrual system.'
[9] The appeal lapsed and the appellant, by way of a formal application,
requested condonation for the late prosecution and reinstatement of the appeal. On
14 April 2025, this Court granted the relief so sought. Suffice it to say that the gist of
the appellant's contentions related to financial constraints to have proceeded earlier
with the appeal.
[10] In the judgment by the magistrate who varied the order, after having
considered the papers filed by the parties and the submissions made, she reasoned
as follows:
'[26] Now, at fir st glance, paragraph 2 [of the order] makes it clear that the
joint estate is to be divided between the parties and that in my view, includes
the Second Respondent's (the appellant in casu) pension interest in the
Transnet Retirement Fund...
…
[29] Now it is so that the Applicant initially prayed for in her particulars of
claim that each party retain their respective pension funds. Upon viewing this
in context with the plea and counterclaim and the eventual court order made,
the most sensible interpretatio n is that parties are to divide all assets in the
joint estate.
[30] In my view, had the words "division of the joint estate" been excluded
from the court's order, it would have been a clear indication that division would
only apply to the Applicant's pension fund as seen in paragraphs 5-7.
[31] ln casu, this is not the case, the words were specifically included. It is
also not in dispute that the Second Respondent is indeed a member of the
First Defendant which is defined as a pension fund in terms of Section 1 of the
Pension Funds Act and that the said funds have not yet been claimed and are
in fact, still available.
[32] It cannot be asserted that the Applicant waived her right to claim from
the Second Respondent pension fund in light of the order for th e division of
the joint estate and full context and background of this matter.'
[11] From the above extracts of the judgment it is evident that the magistrate
concluded that, as the parties were married in community of property, division of the
joint estate would entail that they were to share equally in the division of moveable
and immovable property. She was well aware of the principles set out by the
Supreme Court of Appeal in Ndaba v Ndaba 2 (Ndaba). Suffice it to say that the
majority of the court found that a pension interest of a party is an integral part of the
joint estate which is to be shared.3 The court rejected the maxim 'expressio unius est
exclusio alterius' upon which reliance was placed. The court held:
'In any event, there is a more fundamental reason why the pension interest of
the parties must, on the facts of this case, be an integral part of their joint
estate. Central to the reasoning in my colleague's judgment is, in my view, the
notion that a pension interest is neither immovable nor movable. And that
because the clause under consideration provides that only immovables and
movables shall be divided equally between the parties, anything else not
expressly mentioned is excluded ... It therefore goes without saying that the
expressly mentioned is excluded ... It therefore goes without saying that the
parties' entitlement to each other's pension interests, which can be satisfied
by a money payment, falls squarely within the rubric of movables. Seen in this
2 Ndaba v Ndaba [2016] ZASCA 162; 2017 (1) SA 342 (SCA).
3 Ibid para 26.
light, the maxim expressio unius est exc lusio alterius is therefore
unavailing .. .'4
[12] The effect of Ndaba is that a pension interest of a member spouse as at date
of divorce, by operation of law, forms part of the joint estate. It must be noted that the
trial court certainly did not order a forfeiture of the mentioned benefit. In our view, the
mere failure to include an order regarding the appellant's pension interest in the
order of 19 January 2023 did not serve to negate the respondent's right to 50% of
that benefit. The subsequent order against the fund was necessary only to authorize,
inform, and instruct the pension administrator on how to comply with the court's
existing duty.
[13] Transnet was cited as a party and did not object to the order. The appellant
attempted to convinc e us that applying the principles set out in Eskom Pension and
Provident Fund v Kruge l and Another , 5 the appeal should succeed. In the
aforementioned judgment, the Supreme Court held that '... once the pension benefit
has accrued, ie beyond the date of div orce at which time the pension interest
converts into a pension benefit, the provisions of s 7(7) and (8) are no longer
applicable'. In casu, it is common cause that the appellant's employment had been
terminated in 2019. However, from the evidence it woul d appear that Transnet has
not paid over or released his pension benefit yet. In our view, the appellant probably
would not have pursued this appeal had he received his full pension benefit.
Therefore, we are not of the view that the magistrate was wrong i n finding that the
order of 19 January 2023 had to be supplemented as she did. On the contrary, we
believe that the order of 8 December 2023 was (and is) necessary to properly effect
the division of the joint estate. The appellant's entitlement to an amount equal to 50%
of the value of the first respondent's pension benefit (held with the Government
Employees Pension Fund), was ordered to be paid directly to the appellant in terms
Employees Pension Fund), was ordered to be paid directly to the appellant in terms
of the order.
4 Ibid para 35.
5 Eskom Pension and Provident Fund v Krugel and Another [2011] ZASCA 96; 2012 ( 6) SA 143
(SCA).
[14] In light of the aforementioned, it follows that we are not convinced that the trial
court erred in any respect whatsoever. As such, the appeal cannot succeed. As
there was no opposition to the appeal, there is no necessity for an order of costs.
[15] The following order is made:
The appeal is dismissed.
S CHESIWE
JUDGE OF THE HIGH COURT
I concur
C REINDERS
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
Appearances
For the appellant: Adv Madise
Instructed by: Moruri Attorneys Incorporated
For the respondent: No Appearance