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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024-002879
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 24 February 2026
SIGNATURE:
In the matter between:
H[...] J[...] P[...] Applicant
and
N[...] M[...] V[...] Respondent
Delivered: This judgement was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to the Parties I
their legal representatives by email and by uploading it to the electronic file of this
matter on CaseLines. The date of the judgment is deemed to be 23 February 2026
JUDGMENT
RAUBENHEIMER, AJ
Order
1. The respondent is ordered to make payment to the applicant in the
amount of R 2 018 003.23.
2. The respondent is ordered to make payment to the applicant of mora
interest on the amount of R 5 605 562.23 from 1 November 2021 to 4 July
2023 and on the amount of R 2 018 003.23 from 5 July 2023 until date of
payment.
3. The respondent shall pay the costs of the application on scale B.
Introduction
[1] The applicant and the respondent were married to each other out of
community of property with the inclusion of the accrual. The marriage bond was
dissolved by decree of divorce on 21 October 2021, incorporating a settlement
agreement d ated 23 September 2021. The respondent was the plaintiff and the
applicant the defendant in the divorce action.
[2] During the subsistence of the marriage, the respondent was employed by
Exxaro Resources Ltd until being retrenched on 30 April 2021. After h is
retrenchment and until he withdrew from the Exxaro Pension Fund 100% of the
interest therein and 19% of (he interest in the Exxaro Provident Fund to make
payment to the applicant, the respondent remained a member of the Exxaro Pension
Fund and the Exxar o Provident Fund as a paid up member, the effect of which was
that he remained a member except that no further contributions to the respective
Funds were made by either the respondent or his previous employer.
[3] The application is for a money judgment fo r the payment of R 2 018 003.23
mora interest on the amount of R 5 605 562.23 from 21 November 2021 to 4 July
2023, and from 5 July 2023 on the sum of R 2 018 003.23 until date of payment.
[4] The basis for the claim is a breach of the settlement agreement incorporated
into the decree of divorce.
[5] The respondent contends that on a proper interpretation of the settlement
agreement, there was no breach of the agreement. The respondent, furthermore,
contends that the applicant raises an implied or a tacit t erm in the settlement
agreement. She raises this only in her replying affidavit, which is impermissible.
The provisions of the settlement agreement
[6] The applicable terms of the settlement agreement read as follows:
"6. PROPRIETARY SETTLEMENT
6.1 The parties agree and record that they are married to each other out of
community of property subject to the accrual system in terms of Chapter I of
the Matrimonial Property Act, 88 of 1984. The parties agree and record that
the commencement values of their respective estates as at date of conclusion
of the Antenuptial Contract was reflected at R Nil each and that neither party,
save for gifts, donations and inheritances, excluded any assets from their
marriage subject to the accrual system, to the effect that all assets either party
[save for donations, gifts and inheritances they had before and/or after
conclusion of the Antenuptial Contract] from their marriage subject to the
accrual system.
6.2 The parties agree and record that they have determined and agreed on
the amount of the difference in the accrual in the parties' respective estates
due to the Defendant.
6.3 The parties agree and record that the Plaintiff is unable to effect
payment of the total amount of the difference of the accrua l in the parties'
respective estates in a lump sum to the Defendant and as such, the parties
agreed and record that payment will be made as follows:
…
6.5.1 A cash amount of R666,020.00 [Six Hundred and Sixty Eight
Thousand and Twenty Rand] will be paid b y the Plaintiff to the
Defendant's attorneys [free of exchange or banking charges] on the
date of signature of this agreement into the trust account of the
Defendant's attorneys.
…
6.5.3 The Plaintiff shall, on the date of the signing of this agreement by
both party, the "effective date" being the date when the last party
signed this agreement, pay to the Defendant, without any deduction
and/or bank charges, an amount of R3,400,000.00 [Three Million Four
Hundred].
6.5.4.1 The Plaintiff is a member o f Exxaro Pension Fund
[membership number 3[...]] being administered by SANLAM. The
parties agree and record that the Defendant is entitled to and
awarded 100% [One Hundred Percentum] of the gross value of the
Plaintiffs pension fund interest with Exxaro Pension Fund in terms
of Section 37A(1) of the Pension Fund Act. 24 of 1956, calculated
as at date of divorce.
6.5.4.2 For identification purposes and as proof of the gross
value of the Plaintiff's 100% pension interest of Exxaro Pension
Fund, a true copy of the current valuation thereof is attached hereto
as NM1.
6.5.4.3 The Plaintiffs Exxaro Pension Fund (Membership Number
3[...]) being administered by Sanlam is ordered to effect an
endorsement against the records of the aforesaid Pension Fund to
the ef fect that Defendant is entitled to and awarded 100% of the
Plaintiff's gross pension interest with Exxaro Pension Fund
[Membership Number 3[...]].
6.5.4.4 The Plaintiff's Pension Fund, being Exxaro Pension
Fund [Membership Number 3[...]1] being adminis tered by Sanlam,
pays to the Defendant 100% of the Plaintiff's gross pension interest
in the said pension fund within the time period prescribed by the
Pension Funds Act, 24 of 1956 read with the provisions of the
Pension Funds Amendment Act, 11 of 2007;
6.5.4.5 The parties agree and record that the 100% interest in
the Plaintiffs gross pension interests with Exxaro Pension Fund
[Membership Number 3[...]] being administered by Sanlam be
taxed in the hands of the Defendant on the tax scales/brackets
applicable to the Defendant. The parties agree and record that no
taxation of the 100% interest of the Plaintiffs gross pension benefit
with Exxaro Pension Fund as administered by Sanlam shall be
applicable to the Plaintiffs tax scales/brackets.
6.5.4.6 The parties agree and record that the Plaintiff shall obtain
from Exxaro Pension Fund as administered by Sanlam all the
necessary forms to effect the endorsements referred to above
against his Pension Fund and submit same to the Defendant as per
the rules and regulations of Exxaro Pension in terms of the Pension
Funds Act. The Plaintiff shall ensure that he duly complies with the
rules and regulations of the administrators of the Pension and
Provident Fund and undertakes to submit all required information
and documentation to effect the aforesaid endorsements.
6.5.4.7 The Plaintiff shall within 1 (one) month after decree of
divorce being granted, provide the Defendant with all forms to
ensure that the necessary endorsements be effected against the
Exxaro Pen sion Fund as indicated above and provide Defendant
with documentary proof that instructions to effect the endorsements
have been given with the Exxaro Pension Fund in terms of the
aforesaid paragraphs.
6.5.4.8 The Plaintiff undertakes to, on demand and sho uld
Exxaro Pension Fund require any further documentation and/or
amplification of the aforesaid endorsement to be effected in favour
of the Defendant, obtain same and comply with the provisions
hereof.
6 6.1 The parties agree and record that the Plaintiff has a provident
fund interest with Exxaro Provident Fund as administered by Sanlam.
For identification purposes, of the nature and extent of the Plaintiffs
Provident Fund interest with Exxaro, the parties refer to Annexure NM1
attached hereto.
6.6.2 The pa rties agree and record that the 19% interest in the
Plaintiffs gross pension interest with Exxaro Provident Fund being
administered by Sanlam, calculated as at date of divorce, will be
payable to the Defendant and taxed in the hands of the Defendant on
the tax scales/brackets applicable to the Defendant. The parties agree
the tax scales/brackets applicable to the Defendant. The parties agree
and record that no taxation of the 19% interest of the Plaintiffs gross
provident fund benefit with Exxaro Provident Fund be applicable to the
Plaintiffs tax scales/brackets.
6.6.3 The parties agree and record that the Plaintiff shall obtain from
Exxaro Provident Fund all the necessary forms to effect the
endorsements referred to above against his Provident Fund and submit
same to the Defendant as per the rules and regulations of Exxaro
Provident in terms of the Pension Funds Act. The Plaintiff shall ensure
that he duly complies with the rules and regulations of the
administrators of the Pension and Provident Fund and undertakes to
submit all required information and documentation to e ffect the
aforesaid endorsements.
6.6.4 The Plaintiff shall within 1 [one] month after decree of divorce
being granted, provide the Defendant with all forms to ensure that the
necessary endorsements be effected against the Exxaro Provident
Fund as indicate d above and provide Defendant with documentary
proof that instructions to effect the endorsements have been given with
the Exxaro Provident Fund in terms of the aforesaid paragraphs.
6.6.5 The Plaintiff undertakes to, on demand and should Exxaro
Provident Fund require any further documentation and/or amplification
of the aforesaid endorsement to be effected in favour of the Defendant,
obtain same and comply with the provisions hereof."
Submissions by the parties
[7] At the time of the divorce, the value of the pension interest in the respondent's
Exxaro Pension Fund amounted to R 4 496 335.45; and the value of the 19% held in
the respondent's Exxaro Provident Fund amounted to R 1 109 226.77.
[8] The total amount due to the applicant in terms of the settl ement agreement
amounted to R 5 605 562.23 and became due and payable to the applicant one
month after the date of the decree of divorce.
[9] The applicant approached the Pension Fund Adjudicator ("PFA"), who agreed
with the respective Funds. The PFA further stated that as the settlement agreement
is binding between the applicant and the respondent, she could still pursue her claim
directly against the respondent.
[10] The necessary forms were completed and signed by the parties, and the
respondent ins tructed the relevant Funds to make payment who, despite demand,
refused to make payment to the applicant in accordance with the settlement
agreement. The basis for refusal was that as at the time of divorce, the respondent
had already left the service of his employer the benefits in the respective Funds were
excluded from the definition of a pension interest in terms of section 1 of the Divorce
Act 70 of 1979 ("the Divorce Act").
[11] The refusal by the respective Funds to make payment prompted the
respondent to make a withdrawal from the Funds, resulting in the Funds obtaining a
tax directive to the effect of deducting tax at the rate applicable to the respondent,
namely 36%. This was contrary to the provisions of the settlement agreement.
[12] The respondent paid to the applicant a total amount of R 3 587 599 being the
sum of the 100% interest in the Exxaro Pension Fund, the amount of R 4 496 335.46,
minus 36% tax of R 1 618 680.77 plus 19% of the interest in the Exxaro provident
fund of R 5 838 035. 64 being R 1 109 226.65 minus 36% income tax of R 399
321.59.
[13] The wording of the settlement agreement is not in dispute, and neither is it
disputed that the applicant was entitled to payment in the amount of R 5 605 562.23
in terms of the settlement a greement. Neither of the parties have applied for a
variation of the settlement agreement or any portion thereof. The applicant
contended for the existence of an implied term in the settlement agreement but did
not advance argument in this regard during or al argument or in her Heads of
Argument.
[14] Both parties agree that the essence of the dispute is to be found in a proper
interpretation of the settlement agreement.
[15] The respondent, in turn, contends that it was never the intention of the parties
for him to make payment to the applicant in respect of his pension or provident fund.
The intention, throughout, had been that the amounts were to be transferred directly
from the respective Funds to the applicant and that the settlement agreement
specifically provides as much.
[16] The respondent contends that he fully complied with the terms of the
settlement agreement by signing and submitting the necessary forms to the Funds to
effect payment of the settlement amount to the applicant.
[17] It was the Fund s that failed to comply with the terms of the settlement
agreement and not the respondent. The applicant failed to challenge this failure,
which was the reason for the resultant non-payment of the settlement amount.
[18] The parties share the view th at the essence of the matter is whether the
respondent was obliged to make payment to the applicant in terms of the settlement
agreement.
Discussion
[19] Although the applicant raised an implied term in her relying affidavit, she did
not persist therewith in oral argument and neither did she address it in her Heads of
Argument. It is consequently not necessary to be detained further by this aspect.
[20] The essence of the dispute boils down to whether the settlement agreement is
open for an interpretation that the respondent bears the obligation to make payment
to the applicant in the amount mentioned in the settlement agreement.
[21] The starting point of this enquiry, in accordance with the principles enunciated
in Natal Joint Municipal Pension Fund v Endumeni Municipality 1 are the purpose of
the agreement, its language, the context of the particular provision and the material
known to the parties.
1 2012 (4) SA 593 (SCA).
[22] The words of the agreement are to be interpreted in light of the context which
includes the circumstances leading to the creation of the agreement, 2 and "a
sensible meaning is to be preferred to one that leads to insensible or unbusines slike
results or undermines the apparent purpose of the document."3
[23] The context of the agreement is that the accrual system, in terms of the
Matrimonial Property Act, 4 was applicable to the marriage regime of the parties.
Upon dissolution of the marri age, they had calculated that the applicant had a claim
against the respondent in terms of the accrual system and agreed on the amount
due to the applicant. They, furthermore, agreed that the respondent was not in a
position to effect payment of the total amount and the payment of the diff erence
would be effected in a specific manner.
[24] Firstly, the respondent had to transfer an immovable property to the applicant
and pay a cash amount into the trust account of the applicant's attorneys.
[25] Secondly, the respondent was to transfer owne rship of the vehicle used by
the applicant to her as owner.
[26] Thirdly, the respondent had to pay a cash amount to the applicant on the
effective date of the agreement.
[27] The last two payments dealt with the Pension Fund and the Provident Fund
respectively. In this regard, the parties agreed that the applicant is entitled to and is
awarded 100% of the respondent's gross pension interest in the pension fund. The
parties agreed similarly in respect of the 19% of the Provident Fund interest. The
parties, furthermore, agreed that no taxation of either of the mentioned amounts will
be subject to the tax scales/brackets of the respondent. The respondent was,
furthermore, obliged to comply with the rules and regulations of the respective funds.
2 Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494
(SCA) at para 12.
3 Natal Joint Municipal Pension Fund above n 1 at para 18.
4 Act 88 of 1984.
He was conseque ntly aware of the provisions of the respective funds and the effect
of his retrenchment on the interest in the funds.
[28] The purpose of the settlement agreement was consequently to finalise the
dissolution of the marriage. A specific portion of the agree ment dealt with the
patrimonial aspects of the dissolution and of which specific clauses dealt with the
payment of the agreed amount. The parties agreed that the respondent was not in a
position to make payment of the total agreed amount, and an elaborate and
comprehensive payment scheme, in terms of which the respondent had to play an
exceedingly active role in terms of which he bore the ultimate responsibility for the
different modes of payment was to be implemented.
[29] To interpret the agreement in a manner that would absolve him from payment
in respect of the last two payments would not only be insensible and unbusinesslike
but would also undermine the purpose of the agreement. The conduct of the
respondent is, furthermore, in conformity with such an interpretation.
[30] The argument that the applicant should have approached the respective funds
for relief is a futile argument as the provisions of sections 7(7) and 7(8) of the
Divorce Act do not find application where the pension benefit has accrued before the
date of divorce.5 There is currently no adequate legal framework covering a situation
where a member of a fund exits the fund before the divorce in terms of which the
pension fund could be obliged to pay to the applicant.6
[31] The applicant is thus not precluded from claiming directly from the respondent
on the basis of the settlement agreement.7
[32] The parties specifically agreed on a particular tax regime in respect of the
payments of the respective Fund benefits to be made to the ap plicant. The
5 Eskom Pension and Provident Fund v Kruger and Another 2012 (6) SA 143 (SCA).
6 CNN v NN 2023 (5) SA 199 (GJ).
7 MCM v MRM and North-West University Pension Fund [2014] ZANWHC 31.
deductions made by the respective Funds do not alter the respondent's liability in
terms of the settlement agreement and he is consequently liable in terms thereof.8
Conclusion
[33] Based on the above reasons, the following order is made:
1. The respondent is ordered to make payment to the applicant in the
amount of R 2 018 003.23.
2. The respondent is ordered to make payment to the applicant of mora
interest on the amount of R 5 605 562.23 from 1 November 2021 to 4 July
2023 and on the am ount of R 2 018 003.23 from 5 July 2023 until date of
payment.
3. The respondent shall pay the costs of the application on scale B.
E RAUBENHEIMER
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
For the Applicant: Adv Coetzee instructed by Gilfillan Du Plessis Attorneys
For the Respondent: Adv Hollander instructed by Alice Swanepoel Attorneys
Date of hearing: 16 October 2025
Date of judgment: 23 February 2026
8 Petrus v Berdina [2015] ZAGPPHC 802.