SAFLII Note: Certain personal/privat e 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 HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE №: HCA 29/2025
Court a quo Case №: LP/MAH/RC235/2021
In the matter between:
M[...] P[...] C[...] APPELLANT
V
P[...] L[...] C[...] (NEE T[...]) RESPONDENT
Delivered : 22 May 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 22 May 2026 at 10:00 am.
Date heard : 13 February 2026
Coram : Muller J et Pillay J
JUDGMENT
________________________________________________________________________
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED. YES
PILLAY J
SIGNATURE__________________ DATE 22 May 2026
PILLAY J:
Introduction:
[1] The Appellant before this Court sought to appeal the judgment and order of
the Regional Court Lebowakgomo dated 30 April 2025, wherein the parties
who were married to each other in community of property, were granted a
decree of divorce. The appellant who was aggrieved by the two specific
orders, namely orders 6 and 12 , as contained in the final decree of divorce,
sought this Court ’s adjudication on whether the Court a quo had erred in
respect of same.
Brief Background:
[2] The parties were married to each other in community of property. The
appellant filed for divorce which was defended by the respondent. The
parties agreed that the marriage had broken down irretrievably and both
sought a decree of divorce with equal division of the joint estate. Both parties
specified the way they sought part of the estate to be divided. The Court a
quo, after listening to the evidence, granted the decree of divorce inclusive of
the following two orders, which were the basis for this appeal.
[2.1] “6. The shares in M[...] C[...] Incorporated are to be valued and the net
value of 50% of such shares are to be paid to the defendant within a
reasonable period.”
[2.2] “12. The plaintiff shall pay maintenance to the defendant in the amount
of R2000,00 per month from 1 st June 2025 until her death or
remarriage. The maintenance in this regard shall immediately be
referred to the Maintenance Court, by any one of the parties for
variation should the need arise.”
The Grounds of Appeal:
[3] The appellant indicated that the Regional Magistrate erred and misdirected
itself as follows:
[3.1] Ad decree of divorce order 6 and Judgment paragraph 18(iv). The
respondent in her counterclaim alleged that, “the shares in M[...] C[...]
Incorporated shall be evaluated and the monetary value of the said
shares be paid to the defendant.” The above -mentioned allegation did
not state that the appellant owns any shares in the company or the
assets of M[...] C[...] Incorporated, therefore the shares or assets in
that company formed part of the joint estate.
[3.2] The Honourable Regional Magistrate failed to apply the correct legal
principles and overlooked the provisions of Rule 20(1)(a) of the
Magistrates Courts Rule which provides that, “ a defendant who
counterclaims shall, together with such defendant’s plea, deliver a
claim in reconvention s etting out the material facts thereof in
accordance with Rule 6 and 15 unless the plaintiff agrees, or if the
plaintiff refuses, the Court allows it to be delivered at a later stage.”
[3.3] The respondent during the trial in the Court a quo did not adduce any
evidence to prove her claim that, “the shares in M[...] C[...]
Incorporated shall be evaluated and the monetary value of the said
shares be paid to the defendant.”
[3.4] The respondent failed in her heads of argument, to make any
submissions with the relevant legal authority and facts regarding her
claim as above-mentioned.
[3.5] The Honourable Regional Magistrate in her judgment and reasons
thereof, did not pronounce herself or provide any legally justifiable
reasons arising from the evidence led during the trial, for arriving at the
decision that-“The shares in M[...] C[...] Incorporated are to be valued
and the net value of 50% of such shares are to be paid to the
defendant within a reasonable period.” The Honourable Regional
Magistrate erred and misdirected herself in this regard, with respect.
[3.6] The Learned Regional Magistrate failed to assess and evaluate the
evidence properly adduced during the trial in that the respondent did
not adduce any evidence with regard to her claim of 50% shares in
M[...] C[...] Incorporated.
[3.7] There was no evidence led before the Court a quo with regard to the
proven quantifiable value of the shares in M[...] C[...] Incorporated.
[3.8] The Learned Regional Magistrate erred in finding, “paragraph 6 of the
judgment”, that, “the plaintiff (appellant) was indirectly and in fact,
praying for a forfeiture in his favour in respect of the shares in M[...]
C[...] Incorporated. He was obliged to satisfy the Court on a balance of
probabilities that the defendant would be unduly benefited should the
order not be granted.”
[3.9] During the trial the Honourable Regional Magistrate reminded the
parties that neither of them prayed for forfeiture of patrimonial benefits,
however in her Judgment, she made a finding that the appellant had
the duty to prove forfeiture of patrimonial benefits. It was submitted
that it was fundamentally unfair and inherently unreliable for a Court to
make findings against a party based on a theory of legal liability, not
advanced by the opposing party. It is fundamental to the litigation
process that the legal matters be decided within the boundaries of the
pleadings. The parties to legal proceedings are entitled to have a
resolution of their differences on the basis of the issues joined in the
pleadings.
[3.10] The Honourable Regional Magistrate copied and pasted the
respondent’s heads of arguments which were wrong as the issue of
forfeiture of patrimonial benefits, did not form part of the pleadings and
no evidence was led to that effect.
[3.11] The Learned Regional Magistrate erred and misdirected herself in
finding that the:
(a) “defendant confirmed in her evidence in chief the allegations
contained in her counterclaim paragraph10(b)”.
(b) “That she conceded that she used to bake cakes for an income but
stated that R3000,00 is not enough to survive on.” paragraph10(ix).
[3.12] The Learned Regional Magistrate failed to assess and evaluate the
evidence properly in that the respondent alleged during her evidence
in chief that she was not employed and during cross examination she
admitted that the appellant had opened the employment opportunities
for her and after her retrenchment, she opened a baking business from
which she would sell cakes for R650,00 per customer, per month.
Further, that she had opened a tuck shop at the nearby School which
provided her income.
[3.13] Ad decree of divorce order 12 as per paragraph 18 (i)
“The plaintiff shall pay maintenance to the defendant in the amount of
R2000,00 per month from 1June 2025 until her death or remarriage. The
maintenance in this regard shall immediately be referred to the Maintenance
Court by any of the parties for variation should the need arise.”
[3.14] It was trite that the person claiming maintenance must establish a
need to be supported if no such need was established it would not be
just as required by law for a maintenance order to be issued. It was
further trite that there was no automatic right to spousal maintenance
and the respondent was obliged to prove her claim for maintenance
with full disclosure of her financial situation with more precision and
detail to satisfy the Court of her right to maintenance.
[3.15] The Law stipulated clearly the financial position in that earning
capacity and expenses as well as the affordability of both parties
should be laid bare before the Court, in order for the Court to arrive at
a just decision for maintenance.
[3.16] The Honourable Regional Magistrate failed and overlooked the fact
that the respondent did not lead any evidence with regard to the
maintenance claim and did not produce any evidence on the amount of
R10 000,00 nor any other amount. The respondent did not lead any
evidence as to how she arrived at the sum of R10 000,00 or any other
amount thereof. This begged the question as to how the Honourable
Regional Magistrate arrived at the lifelong maintenance amount of
R2000,00 per month with effect from 1 June 2025.
[3.17] The Learned Regional Magistrate erred and misdirected herself in
finding that the respondent was entitled to lifelong maintenance,
whereas the respondent admitted that she was still of employable age
and was self -employed by operating a tuck shop at a nearby School
and had a baking business.
[3.18] The Learned Regional Magistrate failed to conduct an enquiry into the
income the respondent received at the tuckshop per month and her
baking business. There was only an empty statement made that the
appellant was an attorney while the respondent was unemployed.
However, as to the income and expenditure of both parties, which was
not addressed by both parties, and on that basis the Court a quo
misdirected herself.
[3.19] The Learned Regional Magistrate failed to apply the correct legal
principles that in order to arrive at a just decision of maintenance, a
financial enquiry had to be conducted , which was a misdirection and
on those basis the appeal had a reasonable prospect of success.
[4] Based on the aforesaid grounds the appellant sought that the appeal
succeeds. Both parties filed heads of argument, the respondent sought
condonation for the late filing of same, which was granted. At the hearing of
the appeal , the parties were invited to consult with a view of settling the
matter. This did not materialize and the parties elected that the Court of
Appeal decide the appeal on the papers before the Appeal Court.
Common Cause Facts:
[5] The following were common cause facts in respect of this matter.
[5.1] The parties entered into a civil marriage, in community of property at
Lebowakgomo on 31 March 2000 , and the marriage still subsisted at
the time of the divorce.
[5.2] Two children were born out of the marital relationship between the
parties, one adult dependent child and a minor child.
[5.3] The marriage relationship between the parties had irretrievably broken
down in that they had not lived together as husband and wife, for a
period in excess of twelve months . There were no prospects for the
restoration of a normal marriage relationship between them. Both
parties sought the dissolution of the marital estate.
[5.4] That the respondent would have primary care and residence of the
children and the appellant would have reasonable contact with the
children. The appellant was liable for the maintenance of the children.
Issues for determination:
[6] The crisp issues for determination were the following:
[6.1] Whether the Court a quo erred in finding that the appellant sought
forfeiture of the appellant’s share in M[...] C[...] Incorporated.
[6.2] Whether the respondent had proved her claim in respect to spousal
maintenance.
[6.3] Whether the appeal should succeed and the prayers sought be
granted with costs.
The Legal Principles and Analysis:
[7] In considering the above, this Court is mindful that a court of appeal is not at
liberty to depart from the trial Court’s findings of fact and credibility, unless
they are vitiated by irregularity, or unless an examination of the record
reveals that those findings are patently wrong.1
[8] In S v Monyane and others2 Ponnan JA stated as follows: -
“This court's powers to interfere on appeal with the findings of fact of a trial court are
limited. ... In the absence of demonstrable and material misdirection by the trial
court, its findings of fact are presumed to be correct and will only be disregarded if
the recorded evidence shows them to be clearly wrong (S v Hadebe and Others
1997 (2) SACR 641 (SCA) at 645e – f).”
This Court is confined to the record of proceedings and must within that
perimeter determine the issue of whether the trial Court has either
misdirected itself as to the facts of the case or the application of the law to
the facts. The appellant bears the onus of satisfying the Appeal Court, that
there was such misdirection.
[9] In Ferris and another v FirstRand Bank Ltd 2014 (3) SA 39 (CC) at para
28, the Court noted the following concerning interference with the
discretionary power of the Court of first instance,
‘28 An appeal court may interfere with the exercise of a discretionary power by a lower
court only if that power had not been properly exercised. This would be so if the
court has exercised the discretionary power capriciously, was moved by a wrong
principle of law or an incorrect appreciation of the facts, had not brought its
unbiased judgment to bear on the issue, or had not acted for substantial reasons.’
1 See S v Francis 1991 (1) SACR 198 (A) at 198 J – 199A and S v Hadebe and Others 1997 (2) SACR 641 (SCA) at
645 E-F
2 See 2008 (1) SACR 543 (SCA) at paragraph [15]
[10] It must be borne in mind that an Appeal Court needs to first consider whether
this threshold has been met for such interference. It is an established
principle, that the Court a quo being involved in the hearing of the matter,
was best equipped to determine issues of credibility, reliability , and
corroboration. From the record of proceedings , both parties testified and
based on the pleadings, evidence tendered , and exhibits received, the Court
a quo was satisfied that the appellant was liable for 50% of the business
interest and to provide spousal maintenance to the respondent, outside of
the other orders made.
[11] It is an established principle that when parties are married in community of
property, the assets and debts that they acquired before and during the
subsistence of their marriage are merged and become one joint estate. 3 This
joint estate belongs to both parties in the marriage in joint undivided and
equal shares.4
[12] Section 9(1) of the Divorce Act 5 provides for the forfeiture of patrimonial
benefits as follows:
“When a decree of divorce is granted on the ground of the irretrievable break -down
of a marriage the court may make an order that the patrimonial benefits of the
marriage be forfeited by one party in favour of the other, either wholly or in part, if
3 See Ex Parte Menzies et Uxor 1993 (3) SA 799 (C) 808.
4 D v D (15402/2010) [2013] ZAGPJHC 194 at para 14. See also H R Hahlo, The South African Law of Husband and
Wife (5th ed, 1976) at pages 157-8; Lock v Keers 1945 TPD 113 at 116.
5See Act 70 of 1979
the court, having regard to the duration of the marriage, the circumstances which
gave rise to the break -down thereof and any substantial misconduct on the part of
either of the parties, is satisfied that, if the order for forfeiture is not made, the one
party will in relation to the other be unduly benefited.”
[13] Before the Court a quo could ventilate whether to grant forfeiture, in respect
of the patrimonial benefits of the marital estate, same would need to be
sought and pleaded by that party. In this matter from the particulars of claim
the appellant sought equal division of the joint estate, however , the appellant
sought to retain certain immovable properties, contribute to the maintenance
of the children , and that each party pay s their own legal costs. The
respondent agreed with the manner in which the fixed property was to be
shared and the maintenance of the children, however, the respondent sought
spousal maintenance in the amount of R10 000,00 per month. The
respondent also sought 50% shares of the M[...] C[...] Incorporated, which
was to be evaluated, and the monetary value thereof be paid to her. The
respondent also sought the costs of the litigation. It was on these specific
aspects that the divorce proceedings were based and on which adjudication
by the Court a quo was required.
[14] Ex-facie the particulars of claim the appellant did not seek forfeiture. There
was no prayer sought for same and the provisions of the Divorce Act and
Case Law6 clearly stipulates the three grounds to be pleaded and on which
the successful party will rely upon for forfeiture to be granted in terms of
Section 9 of the said Act. The Court a quo and the respondent approached
the proceedings and evidence on the wrong premis e, concerning the issues
needing adjudication, with specific reference to the allegation that the
appellant sought forfeiture of the respondent ’s right to share in M[...] C[...]
Incorporated7. From reading of the record, it was clear that the appellant was
opposed to the respondent succeeding in her claim for 50% of M[...] C[...]
Incorporated, since the respondent had failed to appropriately plead facts
relevant to prove her entitlement to succeed with this claim. The onus being
on the respondent to prove the allegations and not on the appellant to prove
forfeiture. As correctly noted by the Court a quo this was not pleaded nor
sought by the appellant 8, especially as the issue of the respondent’s half
share in M[...] C[...] Incorporated was raised and sought by the respondent 9.
Amidst this conclusion , the Court a quo, proceeded with adjudicating the
divorce on the basis that the appellant sought forfeiture in terms of section 9
of the Divorce Act.
[15] From the pleadings certain assets were identified by both parties to be
retained outright by each party, an example being the immovable properties,
6 See Wijker v Wijker [1993] 4 All SA 857 (AD) at para 19.
7 See paragraph 6 of the Judgment of the Court a quo page 6 line 9
8 See number (iii)paragraph 16 of the Judgment of the Court a quo page 13 line 20
9 See number (xi)paragraph 3 of the Judgment of the Court a quo page 5 line 5
but no mention was made of the other assets movable or otherwise which
formed part of the joint estate. Neither party placed evidence before the
Court a quo concerning the debts of the joint estate and therefore division of
the joint estate, which was in community of property, would require a full
disclosure of assets and debts of both parties , and only thereafter, could
there be an equal division of the patrimonial estate.
[16] Further, amidst the desire of the parties to retain certain assets, same could
not be disposed of in that manner before the Court a quo whilst the
remainder of the estate was uncertain and not shared. The role of the Court
a quo would have been better suited to adjudicate the dissolution of the
marital estate based on irretrievable breakdown and order the division of the
joint estate , rather than to adjudicate and allocate certain assets and not
dispose of the entire joint estate. This piecemeal approach was to the
detriment of the parties as the remainder of the estate was not identified and
addressed, especially the debts. It is for this reason that this Court finds that
there was material misdirection on the part of the Court a quo concerning the
dissolution of the joint estate.
[17] It is an accepted fact that Divorce terminates the mutual duty to support each
other which exists whilst the marriage subsisted. It is also important to aim
for a clean break principle upon divorce and therefore, when spousal
maintenance is sought , the Court is obliged to appropriately investigate if
spousal maintenance is “just” taking into consideration the age , means,
earning capacity of both parties, and the duration of the marriage.
The appellant highlighted that the Court a quo erred in respect of the award
for spousal maintenance , to the respondent. The appellant argued and
referred to various caselaw concerning the fact that there was a duty on the
Court a quo to hold an investigation into the need and afforda bility of the
parties when spousal maintenance was to be adjudicated.
[18] Regard was had to S.T.H v A.T.H10 where the Court noted:
“Any or all of these factors, in so far as they may be relevant to a particular case
would be regarded in order for Court to make a just order. This begs the question
whether any party bears a specific onus to establish any of those factors. In EH v
SH 2012 (4) SA 164 (SCA) at para 13 , the SCA held that a person claiming
maintenance must establish a need to be supported by the other spouse Should the
need not be proven, it would not be just for a maintenance order to be made. On
the strength of this authority, it must follow axio matically that the claimant, in this
instance, the plaintiff, bears the onus to show the need. It must be so that the onus
lies on the claimant to adduce evidence in support of the claim for spo usal support.
For present purposes, the plaintiff was obligated to produce evidence in support of
the order she seeks.”
10 See: S.T.H v A.T.H (060610/22) [2024] ZAGPPHC 1237 (28 November 2024) at paras 27 and 32.
[19] From the accepted evidence there was no investigation done concerning
how the amount of R 10 000, 00 was comp uted as cla imed by the
respondent. The onus rest ed on the respondent to produce evidence to the
satisfaction of the Court a quo, for the need for spousal maintenance. The
respondent merely highligh ted R10 000,00 as her monthly maintenance
requirement, without justifying the purpose and need for that amount. There
were disputed allegations of R6000,00 being paid monthly to the respondent
for maintenan ce. The Court a quo failed to hold an investigation into the
financial means of the appellant, to afford to pay the amount of R10 000,00,
which exceeded the R6000,00 as testified to, as being paid, by the appellant.
The duty on the Court a quo was to investigate the income and expenditure
of the parties and the affordability of the appellant to pay maintenance to the
respondent, especially considering the various other orders in respect of
maintenance for the children.
[20] This is a fundamental flaw in the reasoning and order made, by the Court a
quo, as no explanation was forthcoming concerning the tabulation of the
amount of R2000,00 per month from 1 June 2025, until the death or
remarriage of the respondent. This material misdirection cannot be
overlooked by this Court as it goes to the heart of the adjudication of the
proceedings in the Court a quo. Since the onus rested on the respondent to
prove her need for maintenance and same was not addressed, ventilated ,
and discharged, the order for spousal maintenance sought by the respondent
as granted by the Court a quo could not be easily identified on appeal for
adjudication. From the record of proceedings , this too was a cursory
approach adopted by the Court a quo without any real grappling with the
issues at hand in determining how the amount of R2000,00 was tabulated.
The respondent was silent in her heads of argument, in rebuttal of this
ground of appeal, indicating a concession to the allegations raised by the
appellant. This Court was satisfied that this claim for spousal maintenance
was not proved in the Court a quo, and the order for spousal maintenance of
R2000,00 to be paid by the appellant is without merit and is dismissed.
[21] Based on the findings above, this Court is satisfied that the order of the Court
a quo with specific reference to the patrimonial consequences of the division
of the joint estate and spousal maintenance needs to be set aside and the
appeal succeed with reference to same.
Ruling:
[22] In light of the aforesaid , the appeal stands to succeed in respect of the
following:
[22.1] The order of the Court a quo concerning the two issues is set aside
and replaced by the following orders, being the division of the joint
estate and there being no order proven for spousal maintenance and
therefore the respondent’s claim to spousal maintenance is dismissed.
Costs:
[23] As this is a matter involving marital disputes and Costs are in the discretion
of the Court, it is for the reasons highlighted above and in the interest of
Justice that there be no order as to Costs.
Order:
[24] This Court makes the following order:
[24.1] The appeal is upheld.
[24.2] The Divorce Court Order of the Court a quo dated 30 April 2024 is
varied as follows.
[24.2.1] “Division of the joint estate.
[24.2.2] Both parties are to retain full parental rights and responsibilities
in respect of the minor child, with primary residence awarded to
the Defendant subject to the Plaintiff’s right of reasonable
contact.
[24.2.3] The Plaintiff is to pay maintenance in respect of the minor child in
the amount of R 3 000 per month as from 1 June 2025 directly to
the Defendant. The maintenance in this regard shall immediately
be referred to the Maintenance Court by any one of the parties,
for variation, should the need arise.
[24.2.4] The Plaintiff shall contribute towards the maintenance of the adult
child, T[...] M[...] P[...] C[...], in the sum of R 6 000 per month as
from 1 June 2025 . The maintenance in this regard shall
immediately be referred to the Maintenance Court by any one of
the parties, for variation, should the need arise.
[24.2.5] The Plaintiff shall pay the children, M[...] M[...] A[...] C[...] and
T[...] M[...] P[...] C[...]’s school expenses, which include but are
not limited to school fees, hostel fees, transport, school uniform,
school stationary and any other school related expenses and
tertiary tuition fees and expenses.
[24.2.6] The Plaintiff shall be responsible and liable for the medical
expenses for the abovementioned children.
[24.2.7] The Plaintiff shall retain and keep the minor child M[...] M[...]
A[...] C[...], on his Medical Aid Scheme and pay other medical,
dental, pharmaceutical and other medically related expenses,
including the costs of hospitalisation and prescribed medicine
required by and incurred in respect of the minor child which are
not covered by the Plaintiff’s Medical Aid Scheme.
[24.2.8] There shall be no spousal maintenance payable to the
Defendant.
[24.2.9] Each party to pay their own costs.”
________________________________
K.L. PILLAY J
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
I CONCUR,
_____________________________
G.C. MULLER J
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE APPELLANT : Mr. MP C[...] (In Person)
INSTRUCTED BY : M[...] C[...] Incorporated
c/o MT Ramabala
Polokwane
FOR THE RESPONDENT : Adv. GK Rambu
INSTRUCTED BY : L.J. Rahlagane Attorneys
c/o Buthane & Rasemana Attorneys
Polokwane