SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HGH COURT OF SOUTH AFRICA
HELD AT PRETORIA
CASE NO: 7390/2018
DOH: 11 November 2025
DECIDED: 12 January 2026
1) REPORTABLE: NO
2) OF INTEREST TO OTHER JUDGES: NO
3) REVISED.
SIGNATURE
DATE 12 January 2026
In the matter between:
W[...] M[...] C[...] M[...] Plaintiff
And
U[...] A[...] M[...] Defendant
This judgment has been handed down remotely and shall be circulated to the parties by
way of email / uploading on Caselines. The date of hand down shall be deemed to be
12 January 2026.
________________________________________________________________
ORDER
_____________________________________________________________
The following order is granted:
1. Decree of divorce;
2. The Defendant forfeits the benef its of the marriage in community of
property;
3. The immovable property situated at 3[...] U[...] L[...] , Eersterus, Pretoria,
Gauteng, shall be the exclusive property of the Plaintiff and the
Defendant has no claim thereto;
3.1 The Plaintiff shall be responsible for all expenses relating to the
immovable property, including the monthly bond repayments;
3.2 The Defendant’s 50% share in the property shall be transferred to the
Plaintiff upon full settlement of the bond;
3.3 Upon compliance with paragraph 3. 2, the Defendant shall sign any
and all transfer documents necessary to transfer his 50% share in the
property to the Plaintiff, who shall be liable for all transfer costs;
3.4 Should the Defendant fail to sign the transfer documents, the sheriff
with jurisdiction in the area where the property is situated is
authorized to sign such documents on his behalf.
4. Costs
________________________________________________________________
JUDGMENT
________________________________________________________________
Bam J
Introduction
1. The sole controversy between the parties is whether the defendant should
forfeit the benefits arising from the marriage in community of property. The
common cause facts are the following: The parties were married to each
other in community of property on 16 December 2000, and the marriage still
subsists1. One major child was born of the marriage. On 5 February 2018,
the plaintiff issued a summons seeking, inter alia, a divorce decree and
forfeiture of the benefits arising from their marriage in community of property.
The parties accept that the marital relationship has broken down irretrievably
and there is no chance of salvaging it. Both parties are adamant that they
want a divorce. The parties testified in their own cases while the defendant
called one witness. Only the plaintiff was legally represented during the
proceedings.
Evidence of misconduct
2. The first person to take to the witness stand was the plaintiff. Her case for
forfeiture, which was uncontroverted during cross examination, may be
summarized thus: The parties ceased living together as husband and wife
from 28 June 2014, following a vicious assault meted out on the plaintiff by
the defendant, which resulted in an Interim Protection Order against him.
Before this date, the defendant would come and go as he pleased. I will
return to the assault shortly.
3. The defendant, according to the plaintiff, was used to staying out from Friday
night and return home during early hours of the morning on Sundays. On
those occasions, he would rape the plaintiff and call her vulgar names.
During one such occasion, the defendant returned home in the early hours
of the morning on Sunday, threw cold water over her, whilst she was still in
bed, and at the same hurling abuse at her. During another one of the
defendant’s violent episodes, he found the plaintiff in the shower and put a
toothbrush in her private parts.
4. Throughout the subsistence of their marriage, the plaintiff successfully
applied for about four Interim Protection orders. The first order was granted
1 The original marriage certificate was handed in from the bar and marked as Exhibit A.
on 12 April 2007, following a brutal assault, threats and intimidation. A copy
of this order is filed on Caselines and marked as Exhibit B. On 6 February
2012, arising from yet another malicious assault and intimidation, the plaintiff
was granted a further protection order. A copy of this protection order is filed
on Caselines and marked Exhibit C. There was another Protection order on
8 April 2014 because of the defendant sexually abusing the plaintiff
threatening and assaulting her. This order is marked Exhibit D.
5. Elaborating to the assault of 28 June 2014, which ultimately saw the
defendant permanently leave home, the defendant came home in the
morning, knocked on his son’s bedroom window and asked for a jacket. At
that point, the defendant had not been staying at home for about a year. The
plaintiff and the parties’ son decided to take the defendant home to his
friend’s house. As the vehicle was reversing out of the garage, the
defendant suddenly pushed the plaintiff towards the passenger seat and
drove off with her. While in the vehicle, he assaulted the plaintiff so severely
with a gear lock, and strangled her with the seat belt, at the same time
muttering murderous imprecations at her. As a result of that assault, the
plaintiff had to undergo surgery to repair her eye. A colour photograph of the
plaintiff’s face taken by their son on the aftermath of this assault is filed on
Caselines and marked Exhibit E. The defendant was subsequently convicted
and sentenced to 5 years.
6. Financially, the plaintiff testified that she has been the family’s sole provider.
Throughout the existence of their marriage, the defendant abused drugs and
alcohol. He could never hold on to a job. Although he once participated in a
rehabilitation program, it appears that he did not take advantage of the
opportunity to turn his life around. When the couple first met, he was
employed by the Department of Home Affairs. Shortly thereafter he was
employed by the Department of Home Affairs. Shortly thereafter he was
dismissed or resigned and was paid a pension benefit of about R30 000
which he never accounted for. By bringing home small items such as milk
and bread, the defendant failed to contribute towards the upkeep of the
home and never paid their child’s expenses. The plaintiff single-handedly
paid for the upkeep of the home and their son’s expenses, serviced the
mortgage and other joint estate debts.
7. At the start of their marriage, the parties agreed that the defendant would
pay for the municipal charges, such as water, rates and electricity but he
never paid a cent. At present, the debt owed to the municipality is in the
standing at R 400 000, 00 (Four Hundred Thousand Rand) which the plaintiff
is servicing at the rate of R 7000. 00 per month.
8. The plaintiff is currently employed by AVBOB and is a member of their
Mutual Fund. Their home has a market value of R1 million with home loan
of R 680 000.00 (Six Hundred and Eighty Thousand Rand). Thus, there is
hardly any equity in the home. At some point, while the defendant was still
living at home, the couple took an advance against their home of R 200 000.
00 From that amount, the defendant bought a car for R100 000, to set up a
business of transporting school kids. He later informed the plaintiff that the
vehicle was confiscated by the police in connection with a case of robbery.
The plaintiff never saw the vehicle again. During one promising moment,
when it looked like the couple were going to work together, the plaintiff
testified that she took out a loan to pay for the defendant’s training as cabin
crew. He later secured a job with Mango as part of their cabin crew. It was
not long before the defendant was asked to leave.
9. Cross examination was conducted by the defendant as an unrepresented
litigant. Nothing shook the plaintiff’s case. The plaintiff thereafter closed her
case. I accepted the plaintiff’s evidence and had no basis to question her
credibility.
10. The defendant was the first to testify. Much of his evidence fell outside his
pleaded case. In a soundbite, his evidence went along the following lines:
He tried to be a good husband and a good father. He tried to provide a home
but it did not work out. There was no cross examination. The next witness to
but it did not work out. There was no cross examination. The next witness to
testify was the defendant’s sister, Ms Samantha Giselle Mash. Her evidence
too fell outside the defendant’s pleaded case. That marked the end of the
defendant’s case.
Applicable legal principles
11. In Mashola v Mashola, the court summarized the principles relevant to the
present enquiry as follows:
‘[28] (a) The party seeking an order for forfeiture of benefits does not have to
prove the existence of all three factors in s 9(1) cumulatively. The court needs to
ask itself whether one party will be unduly benefitted if an order of forfeiture was
not made, and in order to answer that question, regard should be had to the
factors mentioned in s 9(1).
(b) Wijker advocates that when dealing with s 9(1) the following approach
should be adopted: ‘the first step is purely a factual issue. Once that has been
established the trial court must determine, having regard to the factors
mentioned in the section, whether or not that party will in relation to the other be
unduly benefited if a forfeiture order is not made. Although the second
determination is a value judgment, it is made by the trial court after having
considered the facts falling within the compass of the three factors mentioned in
the section.’
(c) The court emphasised that when making a value judgment, applying the
principles of fairness is not justified, as s 9(1) contains no provision for the
application of such principle… It is only after the court has concluded that a
party would be unduly benefited that it is empowered to order a forfeiture of
benefits, and in making this decision it exercises a discretion in the narrower
sense.
(d) Furthermore, the Wijker judgment states that notwithstanding the
introduction of the no fault principle in divorce, a party’s misconduct may be
taken into account in considering, in terms of s 9(1), the circumstances which
gave rise to the breakdown of the marriage. Additionally, ‘substantial
misconduct may include conduct which has nothing to do with the breakdown of
the marriage and may for that and other reasons have been included as a
the marriage and may for that and other reasons have been included as a
separate factor. Too much importance should, however, not be attached to
misconduct which is not of a serious nature.’ It must be found that it is so
obvious and gross that it would be repugnant to justice to let the ‘guilty’ spouse
get away with the spoils of the marriage.
(e) In Engelbrecht v Engelbrecht 1989 (1) SA 597 (C) the court held that it could
never have been the intention of the legislature that a wife, who had for 20 years
assisted her husband faithfully should, because of her adultery, forfeit the
benefits of the marriage in community of property. This confirmed the principle
that the finding of substantial misconduct does not on its own justify a forfeiture
order.’2
Analysis
12. The question that this court must first answer is whether the defendant will
be benefitted if the forfeiture order is not granted. This is a value judgment.
The evidence accepted by this court paints a clear picture that the
defendant, from the early years of his marriage, made no contribution to the
wellbeing of his family and upkeep of his home. He abused drugs and
alcohol, physically, mentally and emotionally abused his wife, and allowed
an untenable situation where his wife single-handedly supported the family.
He evaded responsibility and never accounted for his pension resignation
benefit. I conclude that he will certainly be benefitted in the event the court
does not grant the forfeiture order.
13. The next question to answer is whether the defendant will be unduly
benefitted in the event the court does not grant the forfeiture order. Although
the parties have been married for 24 years, as at the date of the hearing,
they have not been living as husband and wife since 2014. Even before that
date, the defendant had not been living at home for a year. From the early
years of the marriage, he was in and out of the marital home, sometimes
staying away from home for weeks on end. Accordingly, the duration of the
marriage is a neutral factor, given the circumstances.
14. On the reasons that led to the marital breakdown one can clearly identify the
continual vicious assaults on the plaintiff; the emotional and mental abuse;
the neglect of his family, his drug and alcohol abuse, and his financial
2 (022/2022) [2023] ZASCA 75 (26 May 2023), paragraph 28.
delinquency. The defendant simply played no role in the life of his family.
Throughout their marital life, the plaintiff obtained no less than 4 Interim
protection orders. He undermined the plaintiff’s efforts in financially providing
for the family by taking away resources and refusing to account for them. I
include in this regard, the refusal to account for his pension payout; the
refusal to account for the car that was bought for him to run school transport
business. The plaintiff paid for his training as a cabin crew member, but he
undermined all those efforts when he was pushed out of Mango. He evaded
responsibility throughout the duration of the marriage. As a result, the
plaintiff is currently servicing a debt of R 400 000. 00 in favour of the
municipality.
15. I find that all of these issues whether considered cumulatively or in isolation,
amount to substantial misconduct. I conclude that in the event this court
were to refuse the order of forfeiture, the defendant will be unduly benefitted.
I am satisfied that the defendant must forfeit the benefits arising from the
parties’ marriage in community of property.
Costs
16. The plaintiff asked for costs. I can find no reason why she should not
recover her costs from the defendant.
Order
1. Decree of divorce;
2. The Defendant forfeits the patrimonial benefits of the marriage in
community of property;
3. The immovable property situated at 3[...] U[...] L[...] , Eersterus, Pretoria,
Gauteng, shall be the exclusive property of the Plaintiff, and the
Defendant has no claim thereto;
3.1 The Plaintiff shall be responsible for all expenses relating to the
immovable property, including the monthly bond repayments;
3.2 The Defendant’s 50% share in the property shall be transferred to the
Plaintiff upon full settlement of the bond;
3.3 Upon compliance with paragraph 3. 2, the Defendant shall sign any
and all transfer documents necessary to transfer his 50% share in the
property to the Plaintiff, who shall be liable for all transfer costs;
3.4 Should the Defendant fail to sign the transfer documents, the sheriff
with jurisdiction in the area where the property is situated is
authorized to sign such documents on his behalf; and
4. Costs
BAM J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
Date of Hearing: 11 November 2025
Date of Judgment: 12 January 2026
Appearances:
Counsel for the Plaintiff: Adv R Britz
Instructed by: Brandon Swanepoel Attorneys,
Lynnwood, Pretoria
Defendant: In person