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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
APPEAL CASE NO: HCA08/2025
COURT A QUO CASE NO: LP/PLK/RC-16/15
In the matter between:
J[...] L[...] M[...] APPELLANT
AND
M[...] L[...] M[...] 1ST RESPONDENT
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
_____________________ 13/04/2026
SIGNATURE DATE
DATE………… SIGNATURE:……
SANLAM PORTFOLIO PRESERVATION FUND 2ND RESPONDENT
Delivered: 13 April 2026
This judgment was handed down electronically by circulation to the parties’
legal representatives by e-mail. The date and time for hand down of the
judgment is deemed to be 13 April 2026 at 16:00.
Date heard: 06 February 2026
Coram: Ngobeni J et LB Maphelela AJ
JUDGMENT
NGOBENI J
[1] “Like all things in life, like the best of times and the worst of times,
litigation must, at some point, come to an end. … for the principles of
legality and finality of judgments are the oxygen without which the rule of
law languishes, suffocates and perishes 1”. The quoted extract is
1 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the
Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) (17
September 2021).
appropriate in this case because of the length of time that this matter has
been back and forth between the Magistrates’ Court and this Division of
the High Court on challenge of different judgments and appeals. I will for
the sake of completeness outline the history of this case hereunder.
[2] The first respondent instituted divorce proceedings in the Regional Court,
for the Regional Division of Limpopo (cited as Polokwane) by way of
summons, on 26 February 2015 held at the Polokwane Magistrates’
Court, where the first respondent was the plaintiff in those proceedings,
and the appellant was the defendant. The matter was heard by Regional
Magistrate Reynolds (RM Reynolds), who granted absolution from the
instance on 20 July 2017, on the basis that there was no evidence which
showed that a valid customary marriage was concluded between the
appellant and first respondent (parties).
[3] The judgment of RM Reynolds was appealed by the first respondent to
this Division and Judges Phatudi and Semenya (as they were still then
known) referred the matter back to RM Reynolds to hear further evidence
(first appeal). RM Reynolds dealt with the matter again and dismissed the
divorce action with costs. The first respondent again appealed to this
Division the dismissal of the divorce action (second appeal), and the
appeal came before Judges Muller and Naude, and they held a view that
because the order of RM Reynolds for absolution from the instance was
not set aside in the first appeal, that must be done first before the second
appeal could be heard. A variation application was successfully brought
for the first appeal order to be varied, stat ing that the judgment of RM
Reynolds of absolution from the instance was set aside.
[4] The second appeal was subsequently heard before Judges Muller and
Naude, who upheld the appeal by setting aside the decision of RM
Reynolds of dismissing the action, and replaced it with an order on 13
June 2023 declaring that the parties entered into a valid customary
marriage. After the declaration that a valid customary marriage existed
between the parties, the first respondent again approached the Regional
Court for the dissolution of her marriage relationship with the appellant
and division of their joint estate arising from their marriage regime.
[5] The consideration of the divorce action came before Acting Regional
Magistrate M.B. Letsoalo, sitting in the Ma nkweng Magistrates’ Court, in
the Regional Division of Limpopo (court a quo /trial court/presiding
officer). I gave the background of this case up to this stage to qualify the
opening statement that indeed litigation cannot go on forever, at some
stage it must come to an end. I am saying this mindful of the fact that all
avenues open to the litigants must be explored, and if need be, up to the
highest court in the land.
[6] The case at hand is therefore an appeal against the decision of the court
a quo. The court a quo dissolved the marriage relationship that existed
between the appellant and the first respondent on 17 January 2025. The
court a quo amongst others ordered that the joint estate of the appellant
and the first respondent be divided equally, in cluding the appellant’s
pension interest, which is held by the second respondent. The court a quo
in its order specifically ordered the second respondent to effect an
endorsement in its records that 50 (fifty) per cent of the appellant’s
pension interest s hould be paid to the first respondent (plaintiff in the
main divorce action) within 30 (thirty) days after the date of the decree
of divorce, which is 17 January 2025. There is no appeal against the order
pertaining to the minor child/children born from th e marriage
relationship.
[7] The appellant had filed a counterclaim for forfeiture by the first
respondent of the said 50 (fifty) per cent of the patrimonial benefits in
Millionsure Bluestar Balance Preservation Fund (pension interest) held
under Sanlam and a 2014 model Polo Volkswagen motor vehicle (motor
vehicle). The counterclaim was dismissed by the court a quo.
[8] The Full Bench of this Division as per Muller et Naude-Odendaal JJ
declared in an order dated 13 June 2023 that a valid customary marri age
was entered into between the appellant and the first respondent. The
particulars of claim in the court a quo alleged that the parties entered into
a customary marriage in the year 2006 and stayed together as husband
and wife for a period of thirteen (13) years.
[9] The marriage relationship between the appellant and the first respondent
was declared irretrievably broken down by the court a quo . The first
respondent approached the court a quo seeking amongst others a decree
of divorce and equal divis ion of the joint estate. The assets in contention
in the divorce proceedings in the court a quo was the pension interest and
the motor vehicle. The first respondent in the court a quo prayed for
equal division of the pension interest and the motor vehicle, whereas the
appellant prayed for forfeiture of the entire patrimonial benefits arising
out of the marriage in community of property in his favour.
[10] The court a quo granted the order in favour of the first respondent
(plaintiff) and ordered that the joint estate be divided equally between
the parties, in the order dated 17 January 2025. It is this order that is
dated 17 January 2025 that is being appealed by the appellant. It is
important to highlight that because there were several orders that were
made in this case since inception in 2015.
[11] In issue between the parties in this appeal, is whether forfeiture was
rightfully granted against the appellant, in favour of the first respondent
for the joint estate of the parties or not.
[12] The start ing point is therefore that, in terms of section 7(2) of the
Recognition of Customary Marriages Act 2 (RCMA), a customary marriage
concluded after the commencement of the said RCMA in which a spouse is
not a partner in any other existing customary marriage , is a marriage in
community of property and of profit and loss between the parties, unless
such consequences are specifically excluded by the spouses in an ante
nuptial contract which regulates the matrimonial property system of their
marriage. It is comm on cause that in this case no ante nuptial contract
was concluded between the parties before they entered into a customary
marriage.
[13] It is trite that an Appeal Court can only interfere with the decision or
judgment of a court a quo (lower court) i f the lower court misdirected
itself on facts of law, acted irregularly or exercised its discretion
unreasonably3. In view of the fact that the court a quo made a finding
2 120 of 1998.
3 Steenkamp and Others v Edcon Limited [2019] 11 BLLR 1189 (CC) (30 A pril 2019), Hotz and Others v University of
Cape Town 2018 (1) SA 369 (CC) (12 April 2017), MEC Responsible for Local Government, Western Cape v
Matzikama Local Municipality and Others (747/2021) [2022] ZASCA 167; 2023 (3) SA 521 (SCA) (30 November
2022).
that the marriage relationship between the parties was irretrievably
broken down, and in terms of section 9(1) of the Divorce Act 4 (Divorce
Act or Act 70 of 1979), the court which grants a divorce order on the
grounds of the irretrievable breakdown of the marriage may make an
order that the patrimonial benefits of the marriage be forfeite d by one of
the spouses in favour of the other, as stated by Heaton J. in “The Law of
Divorce and Dissolution of Life Partnership (Juta 2014)”. In terms of
section 9(1) of the Divorce Act there are three factors which the court
must consider before the co urt can make an order for forfeiture, which
are:
(i) the duration of the marriage,
(ii) the circumstances which led to the breakdown of the marriage,
(iii) any substantial misconduct on the part of either spouse.
[14] The seminal decision of Wijker v Wijker 5, clarified that a court may not
make a forfeiture order unless that court is satisfied that the spouse
against whom the order is sought would be unduly benefited in relation to
the other spouse. Once it is held that the party will indeed derive a
benefit the court must proceed to determine whether such benefit will be
4 70 of 1979.
5 1993 (4) SA 720 (A).
undue. This determination will be done after considering factors
mentioned in section 9 (1) of the Divorce Act. It is a value judgment
which depends on the assessment of the facts of the matter. Co mmunity
of property is a universal economic partnership of the spouses, all their
assets and liabilities are merged in a joint estate, in which both spouses,
irrespective of the value of their financial contributions, hold equal shares,
as was said in the Wijker case, supra.
[15] The court a quo evaluated evidence in relation to the factors relating to
forfeiture as listed in section 9(1) of the Divorce Act. For the sake of
completeness, I will summarise what the findings of the court a quo was
in relation to the factors that must be considered when a court deals with
the claim for forfeiture. The court a quo found that the marriage
relationship lasted from 2006 to 2025, which is at least 18 (eighteen)
years of marriage, which the court a quo found to be a marriage of long
duration.
[16] The court a quo did not find that the first respondent committed adultery
as was alleged by the appellant in his counterclaim, but to the contrary
the appellant was found to have been the one who engaged in an extra
marital affair in which a child was born, and that was found to have been
what led to the breakdown of the marriage relationship between the
parties by the court a quo.
[17] The court a quo further found that the fact that the appellant committed
adultery and even bore a child in the said extra marital affair constituted
substantial misconduct which eventually led to the breakdown of the
marriage relationship. The findings of the court a quo on its findings
regarding the requirements set down in the provisio ns of section 9(1) of
the Divorce Act cannot be faulted.
[18] The court a quo in its judgment referred to the case of Engelbrecht v
Engelbrecht6 on the determination of the extend of the benefit sought to
be forfeited. Having found that forfeiture cannot be granted in favour of
the appellant, the court a quo had to determine if there is a benefit that is
due or not to the first respondent. On paragraph 29 of the J.A.L. v C.P.L.,
case number 3146/2015, judgment delivered on 02 February 2017 by
the Eastern Cape Local Division of the High Court (J.A.L. case), sitting in
Port Elizabeth, the court said the following with regard to what the party
claiming forfeiture must prove: “Unless it is proved that the nature and
extent of the benefit was, the court cannot determine whether the benefit
was undue or not. Only when the nature and extent of the benefit have
6 1989 (1) SA 597 (C).
been proved does it become necessary for the court to consider the
factors which determine whether the benefit is undue or not”.
[19] Van Niekerk P.A. in his book, A Practical Guide to Patrimonial Litigation in
Divorce Actions, 2017, on paragraph 7.2 opines that for purposes of
determination of ‘means’ in a divorce action, it is suggested that an asset
consists of the rights, title or interest which a pe rson may have in any
corporeal or incorporeal thing, which is capable of being valued in
monetary form. He further on paragraph 3.3.2 opines that “benefits”
constitute the excess of the one party’s contribution to the joint estate
over and above the other party’s contribution.
[20] The concept of “benefits” is properly explained in the old case of Smith v
Smith 1937 WLD 126 at 127-128, where the following is stated:
“What the Defendant forfeits is not his share of the common property but
only the pecunia ry benefits that he would otherwise have derived from
the marriage…. It is really an order for division plus an order that the
defendant is not to share in any excess that the plaintiff may have
contributed over the contributions of the defendant.”
[21] For a court to be able to determine whether there is a benefit which the
other party stands to gain or not, the court must determine as to what
assets are there in the joint estate of the parties which are capable of
being divided. In the case at hand the submission by the appellant was
first that the first respondent is not entitled to share in his pension
interest and the motor vehicle because she did not contribute to the
accumulation of those assets, but he eventually conceded that
contribution is not only monetary but can be by other means. It might be
so that one party might have contributed more than the other party, but
that doesn’t automatically mean that because one has contributed above
the other, then the one who contributed less must forfeit the benefits of a
marriage in community of property, or that the benefit that is due to that
party is undue.
[22] The court must still determine whether the party against whom a
forfeiture order is sought will benefit unduly if a forfeiture order is not
made. The court must therefore still be shown the undue benefit which
the party against whom the forfeiture order is sought will benefit which is
out of the ordinary share that the other party is entitled to by virtue of a
marriage in community of property. The court a quo found that the first
respondent also contributed to the joint estate by being a housewife who
even nurtured their three children7.
7 Beaumont v Beaumont 1987 (1) SA 967 (A), Bezuidenhout v Bezuidenhout 2005 (2) SA 187 (SCA), In V v V, supra,
Maumela J. on paragraph 38 of the judgment, found that the fact that the husband di d not contribute to the pension fund
or the bond account did not mean that he would be unduly enriched at the expense of the wife if the forfeiture order was
not granted. Consequently, the court found that allegations of undue benefit have not been pleaded and proven by the
wife. In Wijker v Wijker, supra, the court emphasised that that the determination of undue benefit involves an exercise of
judicial discretion, considering factors such as the duration of the marriage, the circumstances leading to its br eakdown,
and any substantial misconduct by the parties. It was also clearly stated and settled in Wijker v Wijker, that fairness is not
a factor for consideration when deciding whether forfeiture should be granted or not.
[23] The appellant in his evidence in the court a quo disclosed that he worked
for about four institutions. He purchased a Polo motor vehicle with the
money that he received as pension from one of the institutions he worked
for and invested an amount of 2.7 million to Sanlam Glacier, which is
managed by the second respondent. These transactions took place durin g
the time of the subsistence of their marriage relationship. These are
therefore the assets of the joint estate.
[24] In V v V (3389/2017) [2020] ZAGPPHC 154 (Judgment handed down on
4 March 2020), the court on paragraph 40 of the judgment said the
following: “Our case law dictates that a forfeiture order may not be
granted simply to balance the fact that one of the spouses or partners
has made a greater contribution than the other to the joint estate. Our
courts have also held that the ‘principle of f airness’ was not one of the
criteria mentioned in s 9(1), and therefore should not be considered in
deciding whether to grant a decree of forfeiture”
[25] In my view the Wijker case, supra, settled the issue of proportionality of
contributions in a marr iage that is in community of property by stating
that in determining whether a benefit will be undue, the court cautioned
that the equitable principle of fairness cannot be used to justify an order
of forfeiture as it runs counter to the basic concept of c ommunity of
property.
[26] In the Wijker case, supra, again the court in that case quoted H.R. Hahlo
in ‘The South African Law of Husband and Wife, 5 th edition, at pages 157
and 158 describing community of property as follows: “Community of
property is a universal economic partnership of the spouses. All their
assets and liabilities are merged in a joint estate, in which both spouses,
irrespective of the value of their financial contributions, hold equal
shares”
[27] The court a quo fully considered, evaluated and made findings on issues
that it had to deal with in as far as the claim for forfeiture is concerned.
The verdict by the court a quo for dismissing the forfeiture prayer or
claim by the appellant cannot be faulted by this court. This is an ap peal,
and I see no reason why costs should not follow the result.
[28] In the result the following order is made:
(i) the appeal is dismissed with costs.
…………………………………
J.T. NGOBENI
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION: POLOKWANE
I AGREE
…………………………………………….
L.B. MAPHELELA
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION; POLOKWANE
APPEARANCES
For the appellant: Adv. Z. Marx
Instructed by: Shapiro & Ledwaba Inc.
For the 1st respondent: Mr. H. Masindi
Instructed by: H. Masindi Mandiwana Attorneys Inc.
For the 2nd respondent: No appearances
Heard on: 06 February 2026
Judgment delivered on: 13 April 2026