1
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
GAUTENG DIVISION, PRETORIA
Case No. 60701 / 2019
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 19 February 2026
SIGNATURE
In the matter between:
R[...] E[...] N[...] M[...] Plaintiff
and
M[...] P[...] M[...] Defendant
______________________________________________________________________
ORDER
2
______________________________________________________________________
1. A decree of divorce is granted.
2. The joint estate is to be divided.
3. The Defendant is entitled to 50% of the plaintiff’s interest in the Government
Employees Pension Fund calculated on date of divorce and payable by the Fund
directly to the Defendant.
4. An endorsement is to be made against the records of the Pension Fund to give
effect to the provisions of 3 above.
5. The Plaintiff to pay the costs of the Defendant on scale B.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
TOLMAY J:
[1] The parties in this matter were married to one another and now seek to dissolve
the marriage. A primary issue between them concerned the nature of their union:
whether it was constituted by a customary marriage or by a civil marriage. This
distinction was central to the determination of their respective proprietary rights upon
termination of the relationship.
[2] The plaintiff alleged that the parties were married on 13 September 2017 out of
community of property, subject to the accrual system. The parties entered into an
antenuptial contract on 7 September 2017. On this basis, the plaintiff argued that the
defendant should forfeit any benefit arising from the accrual. Contrastingly, the
defendant asserted that a valid customary marriage existed under section 3 of the
Recognition of Customary Marriages Act 120 of 1998 and sought the division of
community property.
3
[3] There were no children born from the marriage, and neither party claimed
maintenance from the other. Accordingly, aside from the dispute about the marital
regime, the only remaining issue was whether the defendant should forfeit any benefits
from the marriage in community of property, or, in the alternative, her share of the
accrual.
[4] The defendant bore the onus of proving a valid customary marriage and led
evidence on the procedural requirements necessary to establish such a union at the
outset of the trial. The crux of the plaintiff’s challenge was the alleged absence of the
handing over of the bride, though all other requirements were conceded. By the second
day of trial, the plaintiff admitted the existence of a valid customary union,
acknowledging that the parties’ patrimonial regime was thus in community of property.
The only unresolved issue at this stage was the potential forfeiture of marital benefits by
the defendant.
[5] The parties had been in a relationship since 2012. Prior to marriage, the plaintiff
purchased an immovable property at 1[...] C[...] Ext […], Pretoria-North, for
R190 000.00. In 2015, while the house was still being built, the plaintiff and one of his
children moved into an apartment rented by the defendant, joining her and her child.
They cohabited there for two years before their marriage in April 2017. The defendant
stated that she was responsible for the rent, electricity, and groceries, as well as
household duties and care of the children. The evidence of the parties revealed that
both contributed to the household expenses, though they did not agree on exactly how it
was done.
[6] To finance the construction of the house, the plaintiff obtained a bond. Additional
funding was necessary, leading the defendant to secure three loans in her name, as the
plaintiff was not eligible for more credit at that time. The plaintiff also obtained a loan of
R50 000.00 from the defendant’s sister and another from the defendant’s friend, Ms
R50 000.00 from the defendant’s sister and another from the defendant’s friend, Ms
Mphokane, who is her attorney and involved in these proceedings.
4
[7] The plaintiff left the family home in January 2020, while the defendant stayed on.
She testified that the house, initially comprising three bedrooms, was expanded to
seven bedrooms with six bathrooms. The plaintiff covered the bond repayments, while
the defendant paid for six baths and other household expenses, including a security
system costing R80 000.00, as well as rates and taxes. In 2025, the plaintiff sold the
house without informing the defendant, who only learned of the sale upon receiving
notice from his attorney, giving her one week to vacate. She then launched urgent
proceedings to set aside the sale, which is still pending. She was unaware of the sale
price. Despite the sale, the plaintiff continued to pay the bond, while the defendant
maintained the house and covered the previously mentioned expenses.
[8] The plaintiff claimed to have repaid the loans taken out by the defendant, but
evidence suggested that only about R28 000.00 out of more than R100 000.00 had
been settled. He acknowledged that he would not have been able to extend the house
without the defendant’s loans, and he also admitted that he still owes Ms Mphokane
about R250 000.00. The plaintiff testified that the house was sold for R1 595 000.00
because he could no longer afford the bond repayments, selling it at a loss of
R114 000.00. He did not inform the defendant of the sale, as he believed they were
married out of community of property. The plaintiff did not provide any proof of the
property’s value.
[9] The only other significant assets were the parties’ pension funds. The plaintiff is a
member of the Government Employees Pension Fund (GEPF) and retired in 2020 at the
age of 55. He received half of his pension when he retired. The remainder was retained
by the fund pending the conclusion of the divorce, following another urgent application
brought by the defendant The plaintiff claimed the outstanding value of his pension was
brought by the defendant The plaintiff claimed the outstanding value of his pension was
approximately R2 000 000.00, though no proof was provided. He also testified to have
outstanding debts of around R700 000.00. The defendant is also a pension fund
member, her fund was valued at R500 000.00, the details of her pension fund was not
provided during evidence.
5
[10] Ultimately, the plaintiff’s claim for forfeiture rested on alleged ‘financial
misconduct’ and the short duration of the marriage.
[11] Section 9(1) of the Divorce Act 70 of 1979 provides the statutory basis for orders
of forfeiture of assets. The court exercises a discretion based on three primary factors:
the duration of the marriage, the circumstances leading to the breakdown of the
marriage, and any substantial misconduct by either party. The court must be satisfied
that, if forfeiture is not ordered, one party will be unduly benefited relative to the other.
[12] In Wijker v Wijker1, the court explained that section 9(1) does not require the
listed factors to be considered cumulatively. The starting point for any forfeiture order is
to determine whether there will in fact be an undue benefit to one party if forfeiture is not
granted. The court held:
“It is obvious from the wording of the section that the first step is to determine whether or
not the party against whom the order is sought will in fact be benefited. That will be
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.’2
[13] In Engelbrecht v Engelbrecht3, the court explained that joint ownership of
property arises automatically upon marriage in community of property, and a greater
contributor cannot complain unless the benefit to the other party is undue. The court
cannot determine whether a benefit is undue unless the nature and extent of the benefit
1 1993 (4) SA 720 (A)
2 p727 D - F
3 1989 (1) SA 597 (C)
6
are clearly established. Only if the benefit is proven does the court proceed to consider
the other factors relevant to forfeiture.
[14] The plaintiff failed to provide evidence of any undue benefit that would accrue to
the defendant if the estate was equally divided. No evidence was led to enable the court
to determine the benefit or why the benefit would be undue. Following the reasoning in
Engelbrecht, the absence of such proof means the court need not consider the further
requirements for forfeiture.
[15] Out of an abundance of caution however it must be stated that the plaintiff also
failed to prove substantial misconduct, financial or otherwise. The marriage relationship
broke down, and both parties contributed to that. Ironically the plaintiff’s evidence
revealed that the dispute about the proprietary regime that should apply to the marriage
caused conflict. It would seem that this dispute ultimately led to the breakdown of the
marital relationship.
[16] Reliance was placed on behalf of the plaintiff on Swanepoel v Swanepoel4 to
support the argument that the short duration of a marriage could justify a forfeiture
order. The duration of the marriage is a significant factor in determining whether a
forfeiture order should be granted. Short marriages may lead to unfair benefits for one
party, especially when contributions to the joint estate are unequal. In Seth v Seth5 , the
court considered the short duration of an eight-month marriage as a key factor in
granting a forfeiture order. The court adopted a fault-neutral approach, focusing on
whether the benefit to one party would be undue rather than assigning blame for the
breakdown of the marriage.
[17] Although the duration of the marriage was brief, both parties continued
contributing to the estate even after they no longer lived together. The defendant
4 [1996] All SA (3) 440 (SE)
5 [2018] JOL 40665 (GJ).
7
contributed to the maintenance and improvement of the property for a period of nearly
ten years. The fact that she stayed on in the house and that the plaintiff paid the bond is
not disregarded, but that in and of itself cannot be the only determinative factor, she
contributed to the maintenance and improvement of the property while staying there.
[18] The plaintiff should pay the costs of the action not only because he failed to
prove forfeiture, but also because one day was spent to prove the existence or not of
the customary marriage. On the second day of the trial the plaintiff conceded that there
was a valid customary marriage.
ORDER
1. A decree of divorce is granted.
2. The joint estate is to be divided.
3. The Defendant is entitled to 50% of the plaintiff’s interest in the Government
Employees Pension Fund calculated on date of divorce and payable by the Fund
directly to the Defendant.
4. An endorsement is to be made against the records of the Pension Fund to give
effect to the provisions of 3 above.
5. The Plaintiff to pay the costs of the Defendant on scale B.
____________________________
RG TOLMAY
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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
8
email and by uploading it to the electronic file of this matter on CaseLines. The date for
hand-down is deemed to be 19 February 2026.
APPEARANCES:
For the plaintiff : Adv Masipa
Instructed by : Sekonya Attorneys
For the defendant : Adv Breytenbach
Instructed by : Mphokane Attorneys
Matter heard on : 4 & 5 February 2026
Judgment date : 19 February 2026