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
(LIMPOPO DIVISION, POLOKWANE)
CASE NO: HCA 18/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
SIGNATURE: Naude Odendaal J
DATE: 03/12/2025
In the matter between:
M[...] O[...] R[...] (NEE M[...]) APPELLANT
and
T[...] J[...] R[...] RESPONDENT
In re:
T[...] J[...] R[...] APPELLANT
and
M[...] O[...] R[...] (NEE M[...]) RESPONDENT
JUDGMENT
NAUDE-ODENDAAL J:
[1] The Appellant and Respondent were entangled in divorce proceedings. On
the 3 rd of February 2023 the Acting Regional Magistrate for the Regional Court
Division of Limpopo, held at Polokwane granted a decree of divorce and ordered that
the joint estate o f the parties be divided equally including the immovable property
referred to as House Number 1[...], Unit G, Mankweng, as well as that the
Appellant's pension fund is ordered to pay the Respondent an amount equal to 25%
of the Appellant's pension interest w ithin 60 days. The court a quo further made
orders in respect of the minor child's primary care and residence, as well as contact
rights to be awarded to the Respondent (T[...] J[...] R[...]).
[2] The issue before this court on appeal is in respect of orders (b}, (i) and 0) of
the court a quo's order, which stated as follows:-
"(b) The joint estate be divided equally including the immovable property
herein referred to as House number 1[...], Unit G, Mankweng.
(c) - (h) ...
(i) The Plaintiff's pension administrator, the Government Employees
Pension Fund is ordered to pay the Defendant an amount equals to 25% of
the Plaintiff's pension interest held by it within 60 days of this order.
(j) The Plaintiff's pension administrator, Government Employees Pension
Fund is ordered to pay to make the necessary endorsement in its records to
reflect same. Plaintiff's ID NO: 7[...]
(k) ...
(l) ..."
[3] The appeal was instituted at the behest of the Respondent (Defendant in the
court a quo ), wherein he sought a 50% share of the Appellant's pension interest.
However, the appeal lapsed due to non-compliance with Rule 49(6)(a) of the Uniform
Rules of Court in setting down the appeal for hearing.
[4] The Appellant (Plaintiff in the court a quo }, conversely noted and appeal
against the court a quo's findings in respect of her claim for forfeiture. It is on the
cross-appeal that this appeal is before this Court.
[5] The Appellant submitted that the Appellant instituted divorce procee dings
seeking inter alia, dissolution of the marriage, that the Respondent forfeit his 50%
share in her pension benefit held by the Government Employment Fund, and division
of the joint estate.
[6] Defending the divorce action, the Respondent also prayed for the dissolution
of the marriage, but claimed his 50% share of the Appellant's pension interest and
sought that the parties' immovable property situated at 1[...] Unit G, Mankweng ("the
immovable property"), be awarded to the Plaintiff, subject to it bei ng kept in a trust in
favour of their children.
[7] The Appellant submitted that in adjudicating the matter, the court a quo found
that the Appellant was only entitled to partial forfeiture of her pension interest as
opposed to full forfeiture as she prayed for. Despite the Respondent's request for the
immovable property to be awarded to the Appellant for to be held in trust for the
benefit of their children, the court ordered equal division.
[8] The Respondent conceded that his appeal lapsed as he fai led to prosecute
the appeal wherein he sought 50% share to the Appellant's pension fund interest,
due to lack of financial resources. In light thereof, the Respondent elected to
narrowly focus on the award of 25% instead of 50% share of the Appellant's pen sion
fund only.
[9] It was submitted by the Respondent that he however still opposes the
Appellant's appeal for forfeiture of the benefits in terms of Section 7(7)(a) of the
Divorce Act, 70 of 1979 which provides that:-
"ln the determination of the patri monial 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."
[10] The Respondent submitted that what is not in dispute is the value of the
pension fund, which is R98 000.00 (Ninety Eight Thousand Rand) to which the
Appellant is entitled to R49 000.00 (Forty Nine Thousand Rand) thereof. It is
submitted that the Respo ndent is therefore also entitled by law to the 50% share of
the pension fund of the Appellant.
[11] According to the Respondent's submissions, the Appellant has failed to show
that the Respondent would unduly benefit if he is allocated 50% share of the pension
fund interest in terms of Section 9(1) of the Divorce Act, 2 of 2024. The Respondent
submitted that the parties should equally share in each other's pension
fund/provident fund interests.
[12] The Appellant submitted that this court is called upon to determine whether
the court a quo exercised its discretion correctly and judicially when it declined to
grant the Appellant an order that the Respondent forfeit his full (50%) share of the
Appellant's pension interest as a benefit arising out of a marr iage in community of
property and whether the court a quo exercised its discretion correctly when it
declined to uphold the Respondent's request for the immovable property to be held
in trust in favour of the children born from the parties' marriage.
[13] Section 9(1) of the Divorce Act, 70 of 1979 provides:
"When a decree of divorce is granted on the ground of the irretrievable
breakdown of a marriage the court may make an order that 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." (Own emphasis added)
[14] In T.S v M.L.S (5483/2022) [2024] ZAGPPHC 289 (19 March 2024) at paras
10 to 13, the following was stated:-
"[10] The dissolution of marriage by divorce is governed by the Divorce
"[10] The dissolution of marriage by divorce is governed by the Divorce
Act. The general rule is that when a marriage in community of property
dissolves by divorce, the parties in that marriage share equally in the joint
estate. The Divorce Act, however, prov ides for forfeiture of patrimonial
benefits. It means that in certain circumstances a court may make an order
that makes one of the parties not to share equally in the joint estate. The
purpose of forfeiture is said to be to ensure that a person does no t benefit
from a marriage, which they have intentionally broken down. The court may
order that a blameworthy party forfeit the patrimonial benefit to which he or
she may be entitled by virtue of the chosen matrimonial property system.
Hence, parties who are married in community of property may not necessarily
share equally in the joint estate.
[11] The relevant legal principles for a claim of forfeiture are found in
section 9 of the Divorce Act. Section 9(1) of the Divorce Act, is an exception
to the genera l rule. The section provides that 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 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
breakdown of thereof and any substantial misconduct on the part of either of
the parties, is satisfied that, if the order for forfeitu re is not made, the one
party will in relation to the other be unduly benefited.
[12] The question of whether a person has unduly benefited must be
determined having regard to the three factors set out in section 9 of the
Divorce Act, namely: the duration of the marriage, the circumstances that give
rise to the breakdown, and any substantial misconduct on the part of either of
the parties. In the Appellate Division in Wijker v Wijker 1993 (4) SA 720 (AD)
729E - F it was held that these three factors need no t be considered
cumulatively, and that none of these factors should be considered as ranking
cumulatively, and that none of these factors should be considered as ranking
above others. The decision was confirmed in the Supreme Court of Appeal in
Botha v Botha 2006 (4) SA 144 (SCA); Masho la v Mashola (02212022)
[2023] ZASCA 75 para 2 9, wherein that court remarked that the -catch-all
phrase, permitting the court, in addition to the factors listed, to have regard
to 'any other factor' was conspicuously absent from section 9 of the Divorce
Act. That court, further held that section 9(1 ) of the Divorce Act should be
construed within the context of the evidence tendered by the parties in court.
[13] The onus is firmly on the Plaintiff who is the party claiming forfeiture to
establish the nature and extent of the benefit to be forfeited. I n this instance, it
is common cause that the nature of the undue benefit is the Plaintiff's pension
interest, which in terms of the provisions of section 7(7) of the Divorce Act, is
deemed to form part of the joint estate. The extent of the pension interes t is
the amount that is to be paid out when the pension benefit becomes due."
[15] The evidence before the court a quo in essence is as follows:-
15.1 The parties got married to each other in community of property on 21
January 2011. One minor child was born from the marriage.
15.2 The Respondent stopped contributing towards the Appellant and minor
child's daily and living expenses during the year 2 016 and utilized his income
and benefits of the joint estate for his own benefit and third parties.
15.3 The Appellant took out loans to improve the house and to register the
minor child at school. She also single handedly maintained the minor child
and paid for the child's education.
15.4 The Respondent assaulted the Appellant, minor child and had extra
marital affairs.
15.5 The Appellant obtained a protection order against the Respondent
during the year 2018.
15.3 The Appellant left the common household a nd started a new life of his
own without contributing towards the common household and or maintenance
of the Appellant or child.
[16] If the law is to be applied to the facts in the present matter, the Appellant
managed to prove that she is entitled to a forfeiture order. The parties' marriage
relationship lasted for approximately 12 years, however the Respondent stopped
contributing towards the common household during 2016 already - only
approximately 5 years after their date of marriage. The Respondent' s conduct
amounts to substantial misconduct. This court is of the view that if the order for
forfeiture was not made, the Respondent would have unduly benefitted in relation to
forfeiture was not made, the Respondent would have unduly benefitted in relation to
the Appellant.
[17] The court a quo therefore did not misdirect itself or er r when it found that the
Respondent managed to prove that the Appellant will be unduly benefitted if an order
for forfeiture was not granted. In this court's view, the court a quo further correctly
found that only a partial forfeiture of the Appellant's Pensions Fund benefits by the
Respondent is justifiable.
[18] The court a quo further correctly found that the court cannot make an
agreement for the parties in relation to the immovable property to be held in trust to
the benefit of their child. The pa rties should reach that agreement and erect a trust
for their child. Once the parties reached such a settlement agreement, the settlement
agreement could be made an order of court. The appeal therefore stands to fail.
[19] The only issue remaining is the issue of costs. The general rule is that costs
should follow success. In the present matter, although the appeal, on the cross -
appeal, stands to be dismissed, this court is also mindful of the conduct of the
Respondent in the appeal that lapsed. To order any party to pay the costs of the
appeal would be unjustified. In our view, each party should pay his/her own costs.
[20] The following order is therefore made:-
1. The appeal is dismissed.
2. Each party to pay his/her own costs.
M. NAUDE-ODENDAAL
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
I AGREE:
G.J. DIAMOND
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
HEARD ON: 22 AUGUST 2025
JUDGMENT DELIVERED ON: 3 DECEMBER 2025
For the Appellant: Adv. AN Moshiane
Instructed by: Kuaho Attorneys Inc.
Polokwane
Nthabiseng@kuaho.co.za
For the Respondent: Adv. Z.D. Malueleke
Instructed by: Mabu Letaba Inc. Attorneys.
Polokwane
letabaattorneys@gmail.com