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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
Appeal: A335/2024
First Court: 15781/2015
Reportable: No
Of interest to other Judges: No
Revised: No
SIGNATURE
Date: 4 December 2025
In the matter between:
C[...] W[...] M[...] Appellant
and
M[...] M[...] First Respondent
MARI HAYWOOD NO Second Respondent
RETHA STOCKHOFF NO Third Respondent
MASTER OF THE HIGH COURT – PRETORIA Fourth Respondent
SANLAM LIFE INSURANCE LIMITED Fifth Respondent
JUDGEMENT
MOOKI J (Swanepoel J and Mjnnaar AJ concurring)
1 The appeal concerns disputes between former spouses. Ma latsi-Teffo AJ (the
First Court) made a finding in favour of the first respondent (the ex -wife). The First
Court granted the ex -husband (the appellant) leave to appeal to the Full Bench. It is
necessary to first set out the background to this matter for a proper appreciation of
the issues raised in the appeal.
2 The appellant and the ex -wife (the parties) were divorced on 23 May 2018.
Three claims in the divorce proceedings, namely accrual, maintenan ce and costs,
were postponed to 29 October 2018. The order of divorce also provided that the
maintenance obligations in terms of a Rule 43 order granted on 31 March 2017
would remain in effect pending the determination of the three claims. The Rule 43
order provided in part that the appellant was liable to pay his ex -wife maintenance in
the specified amount.
3 The parties did not attend in court on 29 October 2018. They had agreed to
have the three claims dealt with in arbitration proceedings. The arbitrat ion was
conducted from 15 to 18 October 2018. An award was made in favour of the ex -wife.
The ex -wife later received advise that the three claims could not, by law, be
determined in arbitration proceedings but could only be determined by a court.
4 The ex-wife caused a warrant of execution to be issued, on 25 August 2019,
against the appellant for arrear maintenance. The warrant was met with a nulla bona
return. The ex -wife contended that the arrear maintenance as at June 2021
amounted to R 1 085 033.00. S he instituted sequestration proceedings against the
appellant, leading to the appellant's estate being placed under provisional
sequestration. The second and third respondents were appointed joint provisional
trustees (the trustees) of that estate on 15 Ju ly 2021. The appellant's estate was
placed under final sequestration on 8 October 2021.
placed under final sequestration on 8 October 2021.
5 The first meeting of creditors took place on 11 November 20?2. The ex -wife
proved a claim in the amount of R 1 085 033.00 at this meeting. A second meeting of
creditors was held on 3 March 2023. The trustees recorded two notes in the minute
of the meeting, including a note reading as follows: 'Dispute in respect of
maintenance."
6 The ex -wife subsequently launched three applications before court. These
applications are the genesis of the appeal. She launched the first application on 30
November 2021. She sought a declarator that she be allowed to re -enrol the three
outstanding claims. She also sought to have the Rule 43 order of 31 March 2017 to
continue to operate p ending the determination of the three claims. She cited the
trustees as respondents.
7 The ex-wife launched a further application on 18 May 2023. She sought the
same relief as in the application of 30 November 2021. She included the Master of
the High Co urt as a further respondent. She then launc hed a third application on 7
June 2023. She cited the joint trustees, the appellant, the Master of the High Court,
and Sanlam Life Insurance Limited as respondents. She sought the following
declaratory relief in the 7 June 2023 application:
1. That it be declared that [Sanlam Life Insurance Limited] is entitled to in
terms of Section 37D(d)(i) & (iA) of the Pension Funds Act number 24 of 1956
to make certain deductions from the [appellant's] pension benefits, the details
of which is set out hereunder, in terms of the Act being an amount owing in
terms of an order made by a court of a maintenance order as defined in
Section 1 of the Maintenance Act 1988, to a maximum of R 1 085 033 -00
(ONE-MILLION, EIGHTY -FIVE THOUSAND AND THRITY -THREE RAND)
together with interest at a rate of 10.25% from the respective dates wich(sic)
is due and payable in respect of court orders dated 31 March 2017 and 23
May 2018.
The [appellant’s] pension benefits:
Sanlam Life Insurance Limited and a member of its Professional
Provident Society Retirement Annuity Fund (PPS Retirement Annuity
Fund) with the following membership details:
Plan number: [details supplied]
Product Type: Retirement Annuity (434P)
Product Name: The Renaissance Plan for Retirement.
2. Payment of the deductions from the [appellant's] pension benefits be
made to the [first respondent's] Attorneys of record [... ], within 30 (thirty) days
of granting of this order;
3. That those respondents opposing this application be ordered to pay the
cost of the application;
4. That such further and/or alternative relief as the Honourable Court may
deem to be appropriate be awarded to [the first respondent].
[...]
8 The applications were called before Davis J. He made an order on 21 August
2023, on the terms sought by the ex-wife, namely:1
1. That a rule nisi is issued calling upon the Third Respondent to show
cause on the return day of 2 OCTOBER 2023, as to why the following order
should not be made final:
1.1. That it be declared that the Applicant . is authorised to enrol for
adjudication thereof, her accrual -, maintenance- and cost claims, which were
previously postponed to 29 October 2018 under the abovementioned case
number;
1.2. That it be declared that, pending finalisation of the claims referred to in
prayer 1 supra, the Rule 43 order dated 31 March 2017 shall remain in full
force and effect.
1.3. That it is declared that the Fifth Respondent is entitled to in terms of
Section 37D(d)(i) & (iA) of the Pension Funds Act number 24 of 1956, to make
certain deductions from the Third Respondent's pension benefits (the details
of which is set out hereunder), in terms of the Act being an amount owing in
terms of an order made by a court in ter ms of a maintenance order as defined
in Section 1 of the Maintenance Act 1998, to a maximum of R1 085 033.00
(ONE MILLION EIGHTY -FlVE THOU SAND AND THIRTY -THREE RAND)
together with interest at a rate of 10.25% from the respective dates which is
1 Caselines 0014B-2
due and payable in respect of court orders dated 31 March 2017 and 23 May
2018.
The Third Respondent pension benefits:
Sanlam Life Insurance Limited and a member of its Professional Provident
Society Retirement Annuity Fund (PPS Retirements Annuity Fund) with t he
following membership details:
Plan Number: 0[...]
Product Type: Retirement Annuity (434P)
Product Name: The Renaissance Plan for Retirement
1.4. Payment of the deduction from the Third Respondent's pension
benefits be made to the Applicant's Attorneys of record Seymore Du Toit &
Sasson Inc Attorneys, Nelspruit, within 30 (thirty) days of granting of this order.
2. That the rule nisi be served upon the Third Respondent personally.
9 The order was in the form of a rule nisi. The order had to be served on the
appellant in person. This was done. The rule nisi came before Malatsi -Teffo AJ on
the return day. She made an order on 29 April 2024, essenti ally confirming the rule
nisi.
10 The order by the First Court was as follows:
1 The following order is hereby made final
1.1 That it be declared that the Applicant is authorised to enrol for
adjudication thereof, her accrual -, maintenance- and cost claim s, which were
previously postponed to 29 October 2018 under the abovementioned case
number.
1.2 That it be declared that, pending finalisation of the claims referred to in
prayer 1 supra, the Rule 43 order dated 31 March 2017 shall remain in full
force and effect.
1.3 That it is declared that the Fifth Respondent is entitled to in terms of
Section 37D(d)(i) & (iA) of the Pension Funds Act number 24 of 1956, to make
certain deductions from the Third Respondent's pension benefits (the details
of which is set out hereunder), in terms of the Act being an amount owing in
terms of an order made by a court in terms of a maintenance order as defined
in Section 1 of the Maintenance Act 1998, to a maximum of R1 085 033.00
(ONE MILLION EIGHTY-FIVE THOUSAND AN D THIRTY -THREE RAND)
together with interest at a rate of 10.25% from the respective dates which is
due and payable in respect of court orders dated 31 March 2017 and 23 May
2018.
The Third Respondent pension benefits:
Sanlam Life Insurance Limited and a member of its Professional
Provident Society Retirement Annuity Fund (PPS Retirements Annuity
Fund) with the following membership details:
Plan Number: 0[...]
Product Type: Retirement Annuity (434P)
Product Name: The Renaissance Plan for Retirement
1.4 Payment of the deduction from the Third Respondent's pension
benefits be made to the Applicant's Attorneys of record Seymore Du Toit &
Sasson Inc Attorneys, Nelspruit, within 30 (thirty) days of granting of this order.
2. The 3rd Respondent shall pay to the applicant the cost of this application.
11 The appellant seeks to have the orders in paragraphs 1 and 2 in the
judgement by Malatsi -Teffo AJ set aside and replaced with an order dismissing the
applications of 30 November 2021, 18 May 2023·and 7 June 2023 with costs. The
appellant raised the following as grounds of appeal:
11.1 By not finding that the ex -wife did not comply with her obligations to
disclose full facts and relevant evidence in her three applications, which were
also not served on the appellant.
11.2 By not finding that order obtained on an ex -parte basis on 21 August
2023 should be reconsidered and discharged because the ex -wife's failure to
comply with her obligations to disclose facts and relevant evidence.
11.3 By not finding that there was n o evidence that the divorce action was
enrolled for hearing in the Gauteng Division, Pretoria, on 29 October 2028.
11.4 By not finding that the ex -wife did not meet the requirements for the
granting of declaratory relief, including relief to reinstate the Rule 43 Order of
31 March 2017 and for the reinstatement of the three claims.
11.5 By not finding that ex -wife did not mee t the requirements for the grant
of declaratory relief in relation to the making of monetary deductions in terms
of Section 37D of the Pensions Funds Act no 24 of 1956; alternatively, that
there were disputes of fact necessitating a referral to trial.
11.6 That the Rule 43 Order of 31 March 2017 could not be reinstated, as
that order had been substituted by an order by the maintenance co urt on 14
March 2022.
11.7 That the court could not made an order that monies be deducted terms
of Section 37D of the Pensions Funds Act No 24 of 1956, because no arrear
maintenance was claimable; alternatively, the court ought to have found that
there was a dispute of fact and referred the matter to trial.
12 The appellant contends that the First Court did not have regar d to the law on
ex parte applications. That was because the ex-wife did not serve the applications on
the appellant in person, failing to comply with the strict disclosure requirements in
such applications.
13 The appellant raised the following as the fundamental basis for objecting to
the First Court re -enrolling the outstanding claims by way of a declaratory order. He
contends that the ex -wife had no basis to approach a court for declaratory relief
because she could simply have re -enrolled the claims through the office of the
Registrar and by complying with the rules of Court on the enrolment of matters.
14 The First Court, having considered the issues raised by the parties, held that it
was in the interest of justice to re -enroll the claims and to have the issues
adjudicated to finality.
15 Counsel for the ex-wife accepted during the hearing of the appeal that the ex -
wife could have re-enrolled the three claims without seeking declaratory relief to that
wife could have re-enrolled the three claims without seeking declaratory relief to that
effect. Counsel submitted that the ex -wife approached the court out of abundance of
caution. That was because much time had passed since 29 October 2018 when the
three claims were to have been before court, and that there were other
developments too. The ex -wife considered that the circumstances were such that it
was prudent to re-enrol the claims by way of a declarator to that effect, and that the
First Court exercised the required discretion in granting relief.
Revival of the Rule 43 order
16 The appellant contends the First Court should have dismissed the relief
sought in prayer 2 of the 30 November 2018 and 18 March 2023 applications. That
relief was that the Rule 43 order be declared to remain extant pending determination
of the outstanding three claims. The appellant says that the relief was incompetent
because an order by the Maintenance Court on 14 March 2022 had nullified the Rule
43 order. This was known to the ex -wife who failed to disclose this fact to the First
Court. There was therefore no basis for a declaratory order to revive the Rule 43
order.
17 The appellant also submitted that the First Court erred in granting relief that
was not sought. This was because the relief sought in the 30 November 2018 and
the 18 March 2023 applications referenced a revival of a Rule 43 order, not an order
by the maintenance court. Prayer 1.2 of the order by the First Court referenced a
revival of the order by the maintenance court.
18 The First Court did not accept that the ex -wife sought to mislead that court in
relation to the notice of motion seeking relief referencing the Rule 43 order. The
court held that it was apparent that the ex -wife had made a mistake which was
rectified by moving an amendment, and that such amendment did not prejudice the
appellant. The First Court held that the evidence showed that what happened "was a
mere human error."
19 The ex -wife submits that she did not mislead the First Court in relation to
referencing a revival of the Rule 43 order. She explained that the 18 March 2023
referencing a revival of the Rule 43 order. She explained that the 18 March 2023
notice of motion ought to have referenced the order by the maintenance court,
not the Rule 43 order. Mention of the Rule 43 order in the 18 March 2023 notice of
motion was thus an oversight that was explained to the First Court.
20 Counsel for the ex -wife submitted that the oversight came about as follows.
The Rule 43 order was in operation on 30 November 2021. The notice of motion in
this application was struck from the roll because the trustees were not properly
appointed when this notice was issued. The ex -wife should have removed reference
to the Rule 43 order when she issued the 18 March 2023 notice of motion, because
that order had been superseded by an order by the maintenance court.
Arrear maintenance and pension deduction
21 The appellant submits that the First Court erred in making an order for the
recovery of money from the Sanlam product. The appellant pleaded that the re lief for
payment from his pension was not competent because the product referenced was
neither a pension nor an annuity, but was an insurance policy. He contended that
Sanlam could not be ordered to pay monies held in terms of the product in lieu of
arrear maintenance.
22 The appellant contended that he had, in any event, no outstanding payments
for maintenance. He submitted that he provided evidence of payments made to the
ex-wife, showing that there were no arrear maintenance payments. The ex -wife,
according to the appellant, did not dispute averments that the appellant had paid and
that there were no outstanding payments for maintenance. The appellant further
submitted that the trustees accepted that there was a dispute in connection with the
payment of maintenance.
23 The appellant submits that the First Court ought not to have granted the order
authorising the deduction of pension benefits. That is because there was a dispute
as to the existence or not of arrears for maintenance. The First Cou rt, according to
the appellant, ought to have determined this point in favour of the appellant, on
the appellant, ought to have determined this point in favour of the appellant, on
account of the Plascon -Evans rule; by determining that the ex -wife had not proven
that the maintenance was in arrears.
24 The appellant further submitted tha t the First Court failed to consider the
factual dispute in relation to the issue of arrear maintenance. T hat was the case
notwithstanding .the court referencing the existence of a dispute between the parties
as to whether arrear maintenance was payable or not. The First Court, according to
the appellant, ought to have adjudicated the dispute, instead of making a finding that
the trustees must accept or reject the claim. The appellant submits that "it is
undoubtedly so that the trustees have not made decision (sic) on the disputed claim",
and that the trustees recorded in their report to the Master that "there is a dispute in
respect of maintenance, i.e. the claim by first respondent for arrear maintenance."
25 The appellant submitted that the existence of a dispute of fact as to whether
the appellant was in arrears in relation to his maintenance obligations militated
against the First Court granting the declaratory relief sought by the ex-wife.
26 The ex -wife's primary contention is that she proved a cla im for arrear
maintenance against the appellant's insolvent estate. This was the basis for the relief
sought in the 7 June 2023 application. She further pointed out that the trustees
accepted her claim.
27 The ex -wife maintaine d that the First Court was c ompetent to authorise
Sanlam to pay her from the fund referred to in her application. An official from
Sanlam confirmed that the ex -wife could claim against the fund, should a court
authorise the making of a payment. The ex -wife thus maintained that the appellant
failed to show that monies in the identified account were incapable of being paid to
satisfy her claim for arrear maintenance.
Analysis
28 The rule nisi is, in substance, about two applications: namely those of 18 May
2023 and of 7 June 2023. The 30 November 2021 was replaced by that of 18 May
2023. This is made clear by the fact that the notice of motion in the two applications
2023. This is made clear by the fact that the notice of motion in the two applications
seek the same relief. The 30 November 2021 application was struck from the roll for
seemingly citing trustees who had not been appointed, and for not citing the Master
of the High Court. The appellant does not take issue with the finding by the First
Court that the 30 November 2021 application was struck from the roll.
29 The contention that the First Court had no regard to the require ments for ex
parte applications lacks merit. The appellant filed answers to all the applications that
were before the First Cour t. The First Court determined those applications with
reference to all material, including the various defences raised by the appellant as to
why the rule nisi had to be discharged.
30 The appellant does not raise any cogent grounds for disturbing the F irst
Court's confirmation that the three claims be re -enrolled. The appellant's submitted
that the ex -wife ought to have enrolled the claims much earlier, but was busy with
other applications including instituting sequestration proceedings against the
appellant. Ultimately, the appellant conceded that this complaint is academic and
that the real issue was the subject of costs.
31 Counsel for the ex-wife accepted during the hearing of the appeal that the ex -
wife could have re-enrolled the three claims withou t seeking declaratory relief to that
effect.
32 The First Court held that it was in the interests of justice that the three claims
be re-enrolled. The court also determined that the appellant was not prejudiced by
the claims being re -enrolled. This finding cannot be impeached. The court had
regard to the circumstances and the background to the dispute between the parties,
before holding that the relief was warranted.
33 The appellant's submission that the First Court, in granting relief referencing a
maintenance order, did so in relation to relief that was not asked, is unmeritorious.
Counsel for the appellant submitted that the relief was not asked for because the
notice of motion referenced a revival of the Rule 43 order. The app ellant cannot
credibly make this argument. First, the point was not raised as a ground of appeal.
credibly make this argument. First, the point was not raised as a ground of appeal.
Second, the appellant knew that the ex -wife gave notice to amend her notice of
motion. The First Court, in granting this relief, did so based on an issue that was
raised with the court. The appellant variously complains (without merit) that the ex -
wife misled the First Court. It is a surprise that the appellant argues that the First
Court gave relief that was not asked for, when the appellant knows that the ex -wife
mentioned expres sly in her papers that she would seek to amend her notice of
motion by removing reference to the Rule 43 order. There is no basis to attack
paragraph 1.2 of the order by the First Court.
34 The appellant says he was not in default on payment of maintenance to the
ex-wife and that the First Court erred in authorising deductions from the appellant's
benefits with Sanlam. The appellant also says that section 37D(d)(i) and (iA) barred
the ex -wife from seeking payment of monies from the Sanlam product to defray
arrear maintenance payments.
35 The First Court correctly accepted that the ex -wife had made out a case for
payment of the arrear maintenance from the Sanlam product. This finding cannot be
faulted. The First Court was also correct that the product was sub ject to section 37.
Sanlam accepted that the ex-wife could claim against the product.
36 The First Court was aware of the contention that the appellant was not in
arrears in relation to maintenance. The First Court correctly rejected the appellant's
assertions that he had paid, in its finding that the appellant did not substantiate his
allegations that he had paid. The First Court had regard to the fact that the ex -wife
had proven a claim against the insolvent estate in the amount of R1 085 033.00. The
trustees accepted that the claim was proven. The First Court was alive to the fact
that whether the insolvent estate can pay that amount depended on proceeds that
can be realised. The First Court was not, in any event, called to determine whether
the estate or the Sanlam product had sufficient funds to meet the ex -wife's claim for
arrear maintenance.
37 The appeal ought to fail. The First Court was satisfied that the rule nisi be
37 The appeal ought to fail. The First Court was satisfied that the rule nisi be
confirmed. It considered the defences raised by the appellant. It exercised its
authority to grant the declaratory relief that was sought, having satisfied itself that a
case was made for such relief.
38 The appellant brought an application to introduce new evidence on appeal. He
sought further relief that a party opposing the applica tion be ordered to pay costs on
the scale as between attorney and client, on scale C. The first respondent opposed
the application, filing papers in that regard.
39 The appellant did not persist with his application. Counsel for the appellant did
not menti on the application in his address. The application was raised for the first
time when counsel for the ex-wife was making his address. The court then requested
the appellant's counsel to indicate the appellant's attitude in relation to the
application. The court was informed that the appellant did not persist with the
application. The ex -wife had prepared on this application. She was thus put to
unnecessary expense.
40 I propose the following order:
(1) The appeal is dismissed.
(2) The appellant is ordered to pay the costs of the first respondent, such
costs to include the costs of the appellant’s application to introduce new
evidence.
(3) The costs referred are to include the costs of both Senior Counsel and
Junior Counsel, with the costs of Senior Counsel at Scal e C and those of
Junior Counsel at Scale B.
O MOOKI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
I agree:
C SWANEPOEL
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
I agree:
J MINNAAR
JUDGE (acting) OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Counsel for the appellant: J C Klopper
Instructed by: Innes T Steenkamp Attorneys
Counsel for the first respondent: G F Heyns SC (together with M Jacobs)
Instructed by: Semore Du Toit & Basson Attorneys
Date heard: 9 October 2025
Date of judgment: 4 December 2025