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 HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE №: HCA 60/2023
Court a quo CASE №: LP/PLK/RC-
1041/2019
In the matter between:
M[...] D[...] M[...] APPELLANT
V
L[...] P[...] M[...] RESPONDENT
Delivered : 27 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 27 May 2026 at 13:00 PM.
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 __________________
PILLAY J:
INTRODUCTION:
[1] The Appellant before this Court sought condonation for the late prosecution
of the appeal and to appeal the judgment and order of the Regional Court
Polokwane dated 31 October 2023, wherein a decree of divorce was granted
to the parties, who were married to each other in community of property. The
appellant, aggrieved by orders 2 and 3 as contained in the final decree of
divorce, approached the Appeal Court seeking to have these orders to be set
aside on the basis that the Court a quo had erred in respect of the Judgment
and Order. The appeal was not opposed by the respondent.
BRIEF BACKGROUND:
[2] The parties were married to each other in community property on 27 July
1999. 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. The appellant in the Court a quo sought forfeiture
by the respondent of 30% of his share in the joint estate with specific
reference to the immovable property and t he appellant’s pension interest.
The respondent sought equal division of the joint estate. The Court a quo
after hearing all the evidence, granted the decree of divorce inclusive of the
following two orders which were the basis on which this appeal was being
sought.
[2.1] “2. The proceeds of the immovable property that is situated at house
number 1[...], Zone 3 Seshego, Limpopo Province, shall be shared
equally between the parties.”
[2.2] “3. The Court orders that 30%(Thirty per cent) of the pension interest of
the plaintiff held by the GEPF, under member number 9835179 shall
be paid to the defendant within sixty days of this order, and an
endorsement must be made by the administrator of the said Fund for
such an endorsement.”
THE GROUNDS OF APPEAL:
[3] The appellant indicated that the Regional Magistrate erred and misdirected
itself as follows:
[3.1] The Learned Regional Magistrate erred by finding that: “The
application by the Plaintiff for partial forfeiture on the house is bound to
fail” notwithstanding her finding of substantial misconduct on the part
of the respondent together with the finding that “The matrimonial home
was given or donated to the parties by the Appellant’s father”
[3.2] In this regard the learned Magistrate erred by failing to take into
account alternatively afford due weight to the case of Phuti Richard
Mosomane v Tlou Itumeleng Mosomane, In the High Court of
South Africa, Limpopo Division Polokwane, Case Number
3264/2023, date 8 June 2022, ADJP Semenya M.V ., as she was
bound to do by virtue of the doctrine of precedent.
[3.3] In the case of Mosomane supra it was, amongst others, held that:
“[32] The defendant in the matter desire to have share in Eco Park, Zandspruit
Marula Heights and Noordhang. She was on the other hand unable to seriously
dispute the allegations that those properties were acquired and paid for by his
mother and sister -in-law and that the plaintiff paid nothing towards acquisition.
Clearly, no resources or assets of the joined estate were spent in acquiring those
assets...”
[3.4] Having regard to the Respondent’s substantial misconduct and the fact
that the matrimonial home was given to the parties by the Appellant’s
father and the fact that the Respondent’s contributions towards the
matrimonial home were very minimal, the Respondent would be unduly
benefited if a partial forfeiture order in respect of the matrimonial home
was not granted in favour of the Appellant.
[3.5] It is respectfully submitted that the learned Magistrate was therefore
guided by wrong principles, as she failed to exercise her discretion
judicially.
[3.6] The learned Magistrate erred by finding that
“The Defendant physically abused the Plaintiff by virtue of the fact that he
was convicted of such by a Court of law. That is substantial misconduct on
the part of the Defendant but however, it is clearly not the only cause for the
breakdown of their marriage.”
[3.7] It is respectfully submitted that the learned Magistrate lost sight of the
case of Wijker v Wijker 1993 (3) SA 720(A) p 727 D -F1 where it was
held as follows in this regard:
“substantial misconduct may include conduct which has nothing to do with
the breakdown of the marriage and may for that and other reason have been
included as a separate factor…”
[3.8] The learned Magistrate erred in finding that “the parties have in
whatever form jointly contributed to the joint estate over a long period
of time” notwithstanding the fact that the Respondent’s contributions
towards the matrimonial home were very minimal and zero towards the
Appellant’s pension interest.
[3.9] The learned Magistrate erred in this regard by failing to take into
account the testimony of the Applicant’s father that he gave the parties
an amount of R 37 000.00 and R 17 000.00 respectively in 2002 to
purchase their first two minibus taxi. Furthermore, that he paid for the
Appellant’s training to become a traffic officer as a result of which the
Appellant built up a pension interest of approximately R 753 589.00
over a period of approximately 15 years.
[3.10] The learned Magistrate erred in this regard by failing to take into
account the Appellant’s testimony that the Respondent’s contributions
towards the household expenses and maintenance needs of the
1 The correct citation of this case is: 1993 (4) SA 720 (A) p 730 B
children were very minimal and that the Appellant and her parents had
to shoulder these expenses alone, which evidence was confirmed by
the Appellant’s father and the parties’ daughter.
[3.11] It is respectfully submitted that in regard the learned Magistrate ought
to have found that on an overall conspectus of the evidence
Respondent’s contributions over the entire marriage have been
minimal and not proportionate to his income as a taxi operator and
member of the Seshego/Polokwane Taxi Association.
[3.12] The learned Magistrate erred by failing to take into account
alternatively afford due weight to the evidence of the Appellant that the
Respondent did not involve her in the taxi business, that she did not
benefit from the income generated by the taxi business and that the
Respondent, without the Appellant’s knowledge, disposed of three of
the minibus taxi’s without accounting to the Appellant.
[3.13] The learned Magistrate further erred by failing to take into account
alternatively afford due weight to the fact that the Respondent failed to
pay tax on the income generated from the taxi business in respect of
which he received a final demand from the South African Revenue
Services (SARS) dated 23 May 2019 which conduct of the Respondent
was to the detriment of the joint estate.
[3.14] The learned Magistrate erred by failing to take into account
alternatively afford due weight to the fact that although the Respondent
purchased a BMW motor vehicle the Appellant was not allowed to use
the said motor vehicle until the Respondent fell in arrears with the
monthly payments and the Appellants had to take over the payments
thereof.
[3.15] It is respectfully submitted that the following facts, amongst others,
justified an order for partial forfeiture in respect of the matrimonial
home and the Appellant’s pension interest to wit:
[3.15.1] Substantial misconduct in the form of physical abuse and
malicious desertion as well as fina ncial mismanagement
of, amongst others the income generated by the taxi
business;
[3.15.2] failure to contribute meaningful and proportionately
towards the joint estate and the running of the household;
[3.15.3] The donations received from the Appellant’s father.
[3.16] The learned Magistrate erred by failing to take into account,
alternatively afford due weight to the letter dated 2 May 2016 written
and signed by the Respondent in the presence of the Appellant in
which the Respondent apologized to the Appe llant for his substantial
misconduct e.g. extra marital affairs, physical abuse, exclusion from
the taxi business and the money generated from it.
[3.17] It is respectfully submitted that the learned Magistrate ought to have
found that the Appellant satisfied the requirements of Section 9(1) of
the Divorce Act, Act No. 70 of 1979 particularly that the Respondent
would be unduly benefited if the order for partial forfeiture was not
granted.
[4] Before this Court, the appellant sought condonation for the late filing of the
Notice of Appeal. The attorney for the appellant filed an affidavit in support of
condonation indicating that the delay was beyond the appellant’s control as
there were issues in obtaining the transcribed record timeously. This Court
considered the delay, the reason for the delay and the interest of Justice and
accordingly the appellant’s non-compliance was condoned.
[5] The appellant argued that the Court a quo in ordering partial forfeiture of the
appellant’s pension interest, accepted that there were grounds justifying
same, which would have applied equally to the joint immovable property,
which was also sought by the appellant. That only on this narrow issue the
appeal should succeed with costs.
COMMON CAUSE FACTS:
[6] The following were common cause facts in respect of this matter;
[6.1] The parties were married to each other in community of property on 27
July 1999 and that the marriage still subsisted at the time of the
divorce.
[6.2] Two adult children were born out of the marital relationship between
the parties.
[6.3] The marriage relationship had irretrievably broken down in that they
had not lived together as husband and wife since 2019 and that there
were no prospects for the restoration of a normal marriage relationship
between them. Both parties sought the dissolution of the marital
estate.
[6.4] The respondent was convicted of a domestic related offence in Court.
ISSUES FOR DETERMINATION:
[7] The following crisp issues were identified to be determined;
[7.1] Whether the Court a quo erred in its application of the law to the facts
of this matter, when adjudicating the issue concerning forfeiture of
benefits as sought by the appellant.
[7.2] Whether the Court a quo erred in its finding that the respondent must
forfeit 20% of the appellant’s pension interest.
[7.3] Whether the Court a quo erred in its finding that the appellant failed to
succeed in her claim for partial forfeiture, in respect of the immovable
property.
[7.4] Whether the appeal should succeed with costs.
THE LEGAL PRINCIPLES AND ANALYSIS:
[8] From the outset it is noteworthy to highlight 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 wrong2.
[9] In S v Monyane and others3 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, in my view, is certainly not a case in
which a thorough reading of the record leaves me in any doubt as to the
correctness of the trial court's factual findings. Bearing in mind the advantage that a
trial court has of seeing, hearing and appraising a witness, it is only in exceptional
cases that this court will be entitled to interfere with a trial court's evaluation of oral
testimony (S v Francis 1991 (1) SACR 198 (A) at 204e).
[10] Having regard to the record of proceedings and within that perimeter this
Court must 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.
[11] 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,
2 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
3 See 2008 (1) SACR 543 (SCA) at paragraph [15]
‘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.’
[12] Moreover, 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 4. This joint estate belongs to both
parties in the marriage in joint undivided and equal shares5.
[13] In Engelbrecht v Engelbrecht6 it was held that:
“Joint ownership of the other spouse’s assets is a right that accrues to spouses
married in community of property when the marriage is concluded. Unless the
parties made precise equal contributions to the joint estate, the party who
contributed the least during the existence of the marriage will benefit above the
other when the marriage is dissolved. This is an inevitable consequence of the
parties’ matrimonial property regime”.
[14] The entitlement of the respondent to a half share in the pension interest of
the appellant is governed by section 7(7) and 7(8) of the Divorce Act which
provides as follows;
4 See Ex Parte Menzies et Uxor 1993 (3) SA 799 (C) 808.
5 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.
6 1989 (1) SA 597 (C) at I.
“7(a) In the determination of the patrimonial benefits to which the parties to any
divorce action may be entitled; the pension interest of a party shall, subject to
paragraphs(b) and(c) be deemed to be part of his assets.”
[15] This is the default position in respect of parties married in community of
property unless forfeiture is sought. Section 9(1) of the Divorce Act 7 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
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.” (my underlining)
[16] Amidst the fact that the Divorce Act provides for the dissolution of a marriage
on the basis of “no fault”, when forfeiture is sought considerations of whether
there was substantial misconduct on the part of one of the parties, is a factor
to be considered with the other two factors as mentioned above.
[17] Regard was had to M v M8 where the SCA made specific reference to the
manner to adjudicate divorce proceedings where forfeiture is sought as
follows;
7 See Act 70 of 1979
8 See (022/2022) [2023] ZASCA 75(26 May 2023) at para 28 pg. 11
“There are several seminal judgments which have clarified the legal principles in
relation to the application of s 9(1). The principles stated by the Appellate Division in
Wijker v Wijker (Wijker) are as follows:
(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 havin g
considered the facts falling within the compass of the three factors
mentioned in the section.’ It further advocated the approach adopted in an
unfair labour practice dispute, where the word discretion is used in a wider
sense. A court will not be exercising a discretion in the narrower sense.
Therefore, there will be no choice between permissible alternatives involved.
(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. Not only is it contrary to the basic concept of
community of property but there is no provision in s 9 for the application of
such a principle. It held further that in considering the appeal the court is
therefore not limited by the principles set out in Ex parte Neethling and
Others 1951 (4) SA 331 (A) and it may differ from the court a quo on the
merits. 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, ‘subs tantial
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 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 c ould
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.”
[18] Based on the aforesaid it was clear that there would be a factual examination
based on the facts before the Court a quo concerning whether the appellant
had established c ompliance with Section 9 in respect of the three relevant
grounds being the duration of the marriage, the reasons for the breakdown of
the marriage, and whether there was substantial misconduct on the part of
either of the parties.
[19] It was apparent from the record that the Court a quo whilst dealing with the
three relevant aspects in respect of the factual finding process , considered
the evidence before it in a piecemeal fashion , separating the immovable
property from the pension interest. This was a misdirection on the part of the
Court a quo as it failed to appreciate the two-step process and trite principles
as laid out in Wiljker.
[20] By ordering as aforesaid the Court a quo failed to appreciate that the
appellant sought partial forfeiture of two specific assets of the joint estate.
The grounds for forfeiture would have to first be proven from all the admitted
evidence and once established, the value judgment of the undue benefit, that
the respondent would have in relation to the appellant, if the forfeiture order
was not made.
[21] From the Court Order, the Court a quo was satisfied that there were grounds
for forfeiture which was ordered in respect of the pension interest of the
appellant. It was therefore irregular to distinguish this asset from the
immovable property as was done, for clearly if the Court a quo found that the
respondent would be unduly enriched if forfeiture was not granted , then
same would be applicable to the immovable property. It is for the above
reasons that this Court is satisfied that the Court a quo had erred, therefore
this Court can intervene and consider the matter afresh.
[22] The evidence before the Court a quo was from the appellant, her father,
daughter, and the respondent. The accepted evidence was that the parties
were married to each other in 1999. The appellant’s father was instrumental
in assisting them to build their marital estate. He had purchased the
immovable property for the parties, provided them with financial assistance in
respect of the Minibus Taxi business , and was responsible for assisting the
appellant with her education. This resulted in her ultimate career as a Traffic
Inspector. The pension benefit as of 30 September 2021 was an amount of
R753 589,00. At the time of the divorce, he was still helping with the
maintenance of the appellant and the children.
[23] The relationship between the parties was strained for a few years, with the
respondent physically abusing the appellant. This was confirmed by the
conviction against the respondent and through the confirmatory evidence of
the appellant’s daughter and father. The respondent had a career as a Taxi
Owner and Driver, earning approximately R 1000,00 per fortnight. He left the
marital home in 2019 and had not contributed to the joint estate since then.
The Court a quo found his evidence to be unreliable in respect of the
contributions made by the appellant’s father towards the joint estate9 and the
internal contradictions in the respondent’s evidence10.
9 See para 42,43, 44 of the Judgment at pg 11.
10 See para 45 of the judgment at pg 11.
[23] The Appellant pleaded that the reasons for the breakdown of the marriage
were as follows:
“6.1 The Defendant conducted various extra marital affairs.
“6.2 The Defendant attempted to kill the Plaintiff with a knife.
“6.3 The Defendant was a lazy person who sponged on the Plaintiff. The little he
earned was dissipated by him.
“6.4 The Defendant vacated the erstwhile marital home of the Plaintiff and the
Defendant in 2019, and the parties have not resided with one another as
husband and wife ever since.”
[24] The evidence led by the appellant was to the effect that at the time of their
marriage the Respondent was a Taxi Driver and she was unemplo yed. They
stayed in a squatter camp near Seshego with their daughter Koketso. The
appellant’s father purchased the matrimonial home, situated at 1[...] Zone 3,
Seshego, for an amount of R65 000.00 on the basis that they would pay him
back, which they never did. The appellant’s father also made certain
improvements to the matrimonial home in respect of which the respondent
purchased some of the building material during or about 2007.
[25] The appellant testified that the respondent’s contributions towards the
matrimonial home were minimal. The appellant’s father also assisted them
financially to purchase two Volkswagen Kombi Minibus taxis. In this regard,
her father borrowed an amount of R37 000.00 to them during October 2001
and a further amount of approximately R17 000.00 later that same year,
which amounts were also not paid back to her parents. In 2006 the
appellant’s father paid an amount of approximately R17 500.00 for her
training, as a Traffic Officer, which training the appellant successfully
completed, and consequents she obtained employment as a Traffic Officer at
the Limpopo Department of Transport on 1 April 2007. She received little to
no support from the respondent in this regard. In addition to the aforesaid
financial contributions by her parents, they also took physical and financ ial
care of the parties’ children. Her evidence in respect of the aforesaid
contributions, was corroborated by her father and supported by documentary
evidence.
[26] The appellant further testified that the respondent did not involve her in the
Taxi business and that she and the children did not benefit from same. His
contribution towards the household was minimal. The respondent sold both
Volkswagen motor vehicle s but failed to account to the appellant in this
regard. The respondent thereafter purchased a Toyota Hi -Ace Siyaya and a
Toyota Quantum, the financial details of which she only became aware of
during the divorce proceedings. The respondent later also sold the Toyota
Quantum, without informing the appellant.
[29] On 25 April 2015, the respondent purchased a second -hand Toyota
Quantum motor vehicle for an amount of R90 000.00, the appellant paid R80
000.00. The balance was paid by the respondent. Both m otor vehicles taxis
(the Toyota Hi -Ace Siyaya and Toyota Quantum) were not in working
condition at the time the respondent left the marital home, leaving them
behind. The respondent during or about 2014 purchased a BMW motor
vehicle. The appellant was, however, not allowed to use the said motor
vehicle. When the respondent fell in arrears with the monthly instalments, the
appellant had to take the payments over and was only then allowed to use
the said vehicle. This vehicle was thereafter registered in their daughter’s
name. It was therefore no longer an asset of the parties’ joint estate.
[30] The appellant indicated that the respondent’s contributions towards the
household expenses, the needs of the children and the joint estate were
minimal and not proportionate to his income as a Taxi operator or owner and
member of the Seshego/Polokwane Taxi Association. The appellant relied on
the assistance of her parents, to provide for the children’s maintenance
needs, the running of the household and the building up of the joint est ate.
The respondent did not pay the tax on the income generated from the Taxi
business, which resulted in a tax debt exceeding R50 000.00 from the South
African Revenue Services which was still outstanding at the time of the
divorce.
[31] The appellant testified that the respondent was an absent father and that her
parents primarily took care of the children. This was corroborated by the
appellant’s father and their daughter. The appellant testified that she endured
physical abuse, the respondent’s alcohol abuse and his numerous extra
martial relationships. The appellant testified that she only became aware that
the respondent fathered a child in 1999, (when they were already married to
each other in terms of Customary Law), on receiving the notice for the
respondent to appear in the Maintenance Court. She testified further about
other extra marital affairs. It was according to the appellant sufficient
justification for the Court a quo to order partial forfeiture on ac count of the
substantial misconduct by the respondent.
[32] The respondent confirmed that he had fathered a child prior to their civil
union. He confirmed that the immovable property was purchased by his
father-in-law but alleged that he had repaid this debt. He denied borrowing
any other money from the appellant’s father. He indicated that during the
period that the appellant was training he was responsible for the upkeep of
their home and children. He purchased groceries which the appellant took
with her to College. He confirmed that the Toyota Hi -Ace Siyaya and Toyota
Quantum, were left behind at the immovable property, according to him , only
one was not operational, however, he was not aware of the vehicle’s
condition at the time he testified in Court.
[33] The respondent denied any substantial misconduct or any infidelity. It was
his version that he contributed significantly towards the joint estate and the
household expenses. He confirmed that he had purchased the building
material that the appellant’s father used in the renovations of the immovable
property. He did the fitting of the units , in the kitchen and dining room. He
confirmed that the BMW was registered to and being used by their daughter.
The respondent testified that he maintained his children who were staying
with the appellant’s parents. He indicated that he was staying with his father
who was maintaining him as he was unemployed and did not have a source
of income.
[34] He testified that he only took leave in winter when his co -workers were
around, otherwise, he was consistently employed. He indicated that he
approached the Domestic Violence Court for protection against the appellant
due to her disposing of the motor vehicles at their residence. From the
record, there was no final Court Order indicating that this matter was
ventilated finalised in Court. The respondent indicated that this application
was made, so that he could have something as well, on account of the many
times that the appellant had made compl aints against him with the police,
concerning him breaching the Protection Order that she had. The respondent
made no serious allegations of misconduct against the appellant. He
disputed the evidence and proof of the appellant’s father concerning the
financial contributions made to the joint estate and indicated that the
appellant falsely implicated him as an absent spouse and father, so that she
could secure the assets of the estate only for herself.
[35] As previously highlighted the Court a quo rejected his evidence as false
concerning the contributions made by the appellant’s father and amidst this
finding ordered only partial forfeiture in respect of the pension interest. In this
Court, the appellant argued that this Court grant the prayers as sought in the
Court a quo, in total as there was justification for such partial forfeiture by the
Respondent.
[36] This Court took cognisance that the parties had been married to each other
for several years. The marital estate was grown largely by the financial and
physical contributions made by the appellant’s father. Clearly, the appellant’s
father desired that his child live well and therefore, was actively involved in
securing her a house and physically renovating it. He assisted in their
financial progress in the Taxi business and as a Traffic Officer. The
respondent’s role was to help further the growth of this estate, however from
the accepted evidence, he had failed in this regard. Not only was he an
abusive spouse, but he also depleted the assets from the estate without the
involvement or benefit of the appellant. A blatant example was the disposal
of the BMW motor vehicle.
[37] From the accepted evidence the Respondent did not contribute to the
education of the appellant on which the pension interest is based, nor did he
contribute financially to the purchase of the immovable property. He was a
poor witness whose version concerning his contribution to the joint estate
was questionable. The extension of the immovable property would not have
materialized were it not for the physical involvement of the appellant’s father.
This occurred at the time the appellant was financed to study to become a
traffic officer by her father. The appellant’s father from 2019 to the time of
trial was financially and physically supporting the appellant.
[38] The respondent’s physical abuse of the appellant in the presence of his child
was sufficient reason for the breakdown of the marriage. That is outside of
the admitted child born outside of the marriage and the extramarital
relationships that the respondent was accused of having. The respondent
failed to maintain his family from 2019 which was a clear indication of
financial abuse. This is outside of the sale of the motor vehicles without the
appellant’s consent. The respondent made minimal contribution s for the
benefit of the joint estate, leaving the appellant to rely on her salary and her
father’s financial help.
RULING:
[39] These are but some of the highlighted circumstances of the substantial
misconduct committed by the respondent against the appellant and the joint
estate. There is no doubt that the appellant satisfied the requirements of
section 9 of the Divorce Act, particularly as the respondent would be unduly
benefited, if the order for partial forfeiture, were not granted. The appellant
and her father were the direct financial contributors to the joint estate whilst
the respondent enjoyed the rewards of these investmen ts. The respondent
eroded the value of the joint estate especially considering the debt owed to
SARS and contrary to the proprietary regime of a marriage in community of
property. The appellant’s version is the more reliable version concerning the
circumstances of what transpired in the marital home and corroborates and
supports her claim for an order for partial forfeiture of benefits in respect of
the immovable property and the appellant’s pension interest. The
respondent’s evidence was contradictory, inconsistent and unrel iable and
failed to justify his claim for a half share in her pension interest and the
immovable property. The authorities justify the granting of an order for partial
forfeiture as sought by the appellant.
[40] In light of the aforesaid, the appeal stands to succeed in respect of the
following:
[40.1] The order of the Court a quo concerning the two issues is set aside.
The appellant succeeds in the prayer for partial forfeiture by the
respondent of 30% of his share in the joint estate with specific
reference to the property and the appellant’s pension interest.
COSTS:
[41] As this is a matter involving marital disputes and Costs are at the discretion
of the Court. This Court took cognisance of the fact that the respondent did
not oppose the appeal. It is for the reasons highlighted above and in the
interest of Justice that there be no order as to Costs.
ORDER:
[42] This Court makes the following order:
[42.1] Condonation for the late filing of the notice of appeal is hereby granted.
[42.2] The appeal is upheld.
[42.3] Paragraphs 2 and 3 of the Divorce Court Order of the Court a quo
dated 31 October 2023 is set aside and substituted as follows:
[42.3.1] “The plaintiff’s claim succeeds.
[42.3.2] The defendant shall forfeit 30% of the patrimonial benefits
of the marriage in community of property, in respect of the
plaintiff’s pension benefits and interest held in the
Government Employee Pension Fund and further in
respect of the immovable property that is situated at
house number 1[...], Zone 3 Seshego, Limpopo Province.
[42.3.3] It is ordered that each party shall pay his or her own legal
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 : Mrs. M de Klerk
INSTRUCTED BY : DDKK Attorneys
FOR THE RESPONDENT : No Appearence
INSTRUCTED BY : SM Mpati Attorneys