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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, JOHANNESBURG
Case Number: A2024-122591
Court a Quo Case Number: 2021/32083
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
24/08/2026
DATE SIGNATURE
In the matter between:
A[…] R[…] B[…] Appellant
and
M[…] E[…] B[… ] Respondent
Coram: Mali et Modiba JJ et Mitchell AJ
Heard: 04 March 2026
Delivered:
This Judgment was handed down electronically by circulation
the parties/their legal representatives by email and by uploading
to the electronic file on CaseLines . The date for hand- down is
deemed to be 24 August 2026.
ORDER
2
On appeal from : The Gauteng Division of the High Court, Johannesburg (Ford AJ
sitting as Court of first instance):
1. The appeal against the decision of the trial court as regards the Redistribution
Order succeeds. Order 2 of the trial court is set aside and replaced by the
following order-
“(2) A redistribution order is hereby issued in favour of the Plaintiff, directing
the Defendant to pay the Plaintiff R1 000 000 within 3 months of the grant
of this order.”
2. Order 3 of the trial court is amended by the addition of the words “ should the
Defendant predecease the Plaintiff; this order shall survive the death of the
Defendant” as follows –
“(3) The Defendant is ordered to pay spousal maintenance to the P laintiff in
the amount of R18,000 per month (in line with CPI) until he reaches
retirement age, whereafter spousal maintenance shall be paid to the
Plaintiff in the amount of R25,000 per month ; should the Defendant
predecease the Plaintiff, this order shall survive the death of the
Defendant.”
3. There is no order in respect of the costs of this appeal.
JUDGEMENT
MALI J (MODIBA J et MITCHELL AJ concurring)
Introduction
[1] This is an appeal against the judgment and order of Ford AJ delivered on
26 July 2024. The court a quo granted a redistribution order in favour of the
respondent amounting to 35 per cent of the appellant's estate, together with an order
3
directing the appellant to pay spousal maintenance. The appeal is before the Court
with the leave of the court a quo, granted on 3 October 2024.
[2] For convenience, the parties are referred to as they were cited in the court a
quo. The appellant is therefore referred to as "the defendant" and the respondent as
"the plaintiff".
[3] The court a quo granted the following orders –
“1. a decree of divorce is granted effective 31 January 2024, as previously confirmed;
2. a redistribution order is hereby issued in favour of the plaintiff , directing the defendant to
pay to the plaintiff 35% (thirty-five percent) of the defendant's estate. In the unlikely event
of a disagreement between the parties in respect of the value of the defendant's estate,
an actuary shall be appointed, at both parties' costs, to undertake such a calculation (the
“Redistribution Order”);
3. the defendant is ordered to pay spousal maintenance to the plaintiff in the amount of
R 18,000 per month (in line with CPI) until he reaches retirement age, whereafter spousal
maintenance shall be paid to the plaintiff in the amount of R 25,000 per month (the
“Maintenance Order”);
4. the defendant is ordered to pay the plaintiff’s costs of suit, and counsel fees shall be at
Scale A.”
Application for the reinstatement of the appeal
[4] At the commencement of the appeal, the defendant sought condonation for
the late prosecution of the appeal and for its reinstatement on the roll. It was
submitted that the non- compliance with the Uniform Rules resulted from
administrative and logistical difficulties encountered in preparing and filing the
voluminous appeal record. The defendant contended that the default was neither
wilful nor contumacious, that the appeal enjoys reasonable prospects of success,
and that any prejudice to the plaintiff would be minimal and capable of being
4
remedied by an appropriate costs order, and that the interests of justice favour a
determination of the appeal on its merits.1
[5] Although the application for condonation was duly served, the plaintiff filed no
opposing affidavit. In the respondent's supplementary heads of argument, no
submissions were made opposing the application. The plaintiff merely indicated that
she persisted in opposing the appeal and sought leave to deliver supplementary
heads of argument.
[6] In the circumstances, the condonation was granted and the appeal reinstated
and the plaintiff was granted leave to file supplementary heads of argument.
[7] The evidence before the court a quo is that the parties were married to each
other on19 April 1984 at Ermelo, Mpumalanga, out of community of proper ty, in
terms of a duly registered antenuptial contract whereof community of property, profit
and loss, and accrual system in any form has been excluded . The marriage took
place before 1 November 1984.2
[8] No minor children were born of the marriage relationship between the parties.
The marriage relationship h ad broken down irretrievably and ha d reached such a
state of disintegration without any reasonable prospect of a restoration of a normal
marriage relationship. Hence, the court a quo granted a decree of divorce.
[9] The plaintiff’s case in the court a quo was that she worked for 27 years during
the marriage between the parties and disbursed her monthly income on the
acquisition of household necessities, maintaining the parties' minor children, and
improving the parties' common home, as a result of which the plaintiff saved the
defendant expenses which the defendant would otherwise have had t o incur. The
plaintiff further submitted that for the first 13 years of the marriage, she took care of
all household duties without the assistance of a maid; thereafter. a maid was
employed whose salary was paid by the plaintiff and the defendant, and who
employed whose salary was paid by the plaintiff and the defendant, and who
assisted the plaintiff only two days per week, as a result of which the plaintiff saved
1 Grootboom v National Prosecuting Authority and Another [2013] ZACC 37; 2014 (2) SA 68 (CC); 2014 (1)
BCLR 65 (CC) at para 51; Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus
Curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC).
2 Matrimonial Property Act 88 of 1984.
5
the defendant expenses which the defendant otherwise would have had to incur by
acting inter alia as a maid, launderess, and cook.
[10] The plaintiff took care of the parties' children during subsistence of the
marriage, assisted the children with homework, transported the children to and from
school, and transported the children to after -school activities, thereby saving the
defendant expenses he would otherwise have had to incur . The plaintiff further
created a home environment in which the defendant could enjoy all comfort s which
he was entitled to as her husband , and which enabled him to devote his energy and
time to his career, as a result of which the plaintiff indirectly contributed to the growth
and the increase of his estate.
[11] The defendant denied that the plaintiff was the only one attending to
household necessities and the maintenance of minor children. From the time of
entering into the marriage relationship , the plaintiff was employed as a bank official
and continued working until approximately November 2011, when the parties jointly
decided that the plaintiff would stop working. Prior to that , the plaintiff contributed
directly towards the parties' household expenses on many levels, including but not
limited to paying towards general household expenses, children's expenses,
accommodation, municipal expenses, groceries, clothing for the defendant and the
children, and many other ordinary expenses, which in effect saved the defendant
many expenses which the defendant would have had to incur.
[12] The plaintiff resigned from permanent employment during or about November
2011. Prior to this , the plaintiff repeatedly had to terminate employment for transfer
to new employment, which curtailed her growth within the workplace, and which
prevented the plaintiff from furthering her career, which was done on instructions
from the defendant on each occasion that a relocation was necessary for the
defendant to obtain alternative employment.
defendant to obtain alternative employment.
[13] Even after the plaintiff stopped working during 2011, the plaintiff continued
paying towards the general household expenses monthly with the effect that the
defendant did not have to incur such expenses and assisted the defendant to grow
his estate.
6
[14] According to the defendant, the plaintiff failed to discuss her decision to go on
early retirement during or about November 2011 with him . The plaintiff was only 51
years old when she decided to go on early retirement, i.e. 14 years before the
expected retirement age for women in the banking industry. The defendant also
contributed to household expenses and attended to the needs of the children when
they were still minors. The defendant did not dispute that the plaintiff contribu ted
towards some of the general monthly household expenses after she went on early
retirement. However, the defendant testified that his expenses had in fact increased
as a direct result of the plaintiff’s early retirement.
[15] The plaintiff’s estate consist s of the following, with approximate values
indicated:
a) An immovable property situated at No 1[ … ] P[…] […] , No 1 [… ] C[…] Road,
W[…] Park, Roodepoort – R 1 400 000;
b) an endowment policy – R 178 028;
c) a retirement annuity – R 399 035;
d) a retirement annuity – R 589 012; and
e) annuity – R 1 512 000.
The total value of the plaintiff’s estate was therefore R 4 256 103.
[16] It was submitted on behalf of the defendant that it would be unjust for the
court a quo to order the defendant to forfeit 50% of his estate, as the plaintiff had
multiple assets mentioned above and was a woman of substantial financial means.
[17] The defendant’s estate consists of the following, with approximate values
indicated:
a) an endowment policy – R 565 794;
b) a retirement annuity – R 399 677;
c) a provident preserver – R 3 371 206;
d) a retirement annuity – R 1 326 306;
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e) a retirement annuity – R 226 496.00;
f) an investment builder – R 2 432 941.00; and
g) a provident fund – R 1 454 466.00.
The total value of the Defendant’s estate was therefore R9 776 886.
Appeal
[18] It is contended on behalf of the defendant that the trial court erred in granting
both a redistribution order and a maintenance order. It was submitted that, if the
redistribution order is upheld, or is not substantially reduced, the plaintiff will have no
need for maintenanc e. Alternatively, the court a quo erred in granting any
redistribution order at all, on the basis that such an order was neither just nor
equitable.
[19] Accordingly, the challenge to the maintenance order is conditional. The
defendant seeks to set aside or vary the maintenance order only if this Court
declines to set aside or substantially reduce the redistribution order.
Redistribution
[20] A redistribution order under s 7(3) of the Divorce Act 3 (the Act) entails a two-
stage inquiry. The first stage asks whether the claimant spouse has made a direct or
indirect contribution to the maintenance or increase of the other spouse's estate and,
by reason of that contribution, whether it is equitable and just to grant redistribution
relief. If that jurisdictional threshold is met, the second stage concerns the extent of
the redistribution, determined with reference to the factors set out in s 7(5) of the Act.
[21] It was common cause that the plaintiff made both direct and indirect
contributions to the maintenance and increase of the defendant's estate. At the very
least, she fulfilled the traditional role of homemaker throughout the marriage, thereby
enabling the defendant to pursue his career and accumulate substantial wealth. The
existence of qualifying contributions was therefore not in issue. The dispute concerns
the proper weight to be accorded to those contributions in determining the extent of
the redistribution.
3 70 of 1979.
8
[22] In determining what constitutes a just and equitable redistribution, a court
must have regard to the considerations enumerated in s 7(5) of the Act. These
include the nature and extent of the contribution made by the claimant spouse, the
existing means and obligations of the parties, any donations made between them,
and any other factor which, in the opinion of the court, ought properly to be
considered. The enquiry is an evaluative one directed at achieving overall fairness
between the parties. Where a maintenance order is granted contemporaneously with
a redistribution order, that order constitutes one of the relevant circumstances to
which proper regard must be had in determining the extent of any redistribution.4
[23] Although the court a quo correctly found that the plaintiff had established the
jurisdictional requirements for a redistribution order, it appears from the judgment
that the redistribution enquiry and the maintenance enquiry were undertaken
separately. There is no indication that the court a quo considered the effect the
maintenance order would have on the parties' overall financial position when
determining the quantum of redistribution.5 This constituted a material misdirection.
[24] Once the court had ordered lifelong maintenance designed to meet the
plaintiff's ongoing financial needs and to preserve, as far as reasonably possible, the
standard of living enjoyed during the marriage, it was required to take that order into
account in determining what additional capital redistribution would be just and
equitable. Failing to do so resulted in an award which effectively compensated the
plaintiff twice: first by way of a substantial transfer of capital, and secondly by means
of continuing maintenance for life. The combined effect of the two orders exceeded
what was necessary to achieve the equitable objectives of s 7(3) of the Act.
[25] Where a court has materially misdirected itself in the exercise of the discretion
[25] Where a court has materially misdirected itself in the exercise of the discretion
conferred by s 7(3) of the Act , an appellate court is entitled to interfere and to
substitute the discretion of the trial court with its own.
6 In the present matter the
failure to consider the maintenance order as part of the overall equitable assessment
materially affected the exercise of the court’s discretion. This Court is therefore at
large to determine afresh what redistribution would be fair and just.
4 EB v ER NO and Others and a Similar Matter 2024 (2) SA 1 (CC) at para 137.
5 Beaumont v Beaumont 1987 (1) SA 967 (A) at 993C–E.
6 Buttner v Buttner [2005] ZASCA 86; 2006 (3) SA 23 (SCA) at paras 20 and 24.
9
[26] The evidence accepted by the court a quo established that, at the time of
trial, the plaintiff's estate had a value of approximately R4,05 million. By the time
judgment was delivered, that value had reduced marginally to approximately R3,95
million, largely because cash reserves had been depleted to meet legal expenses.
[27] Her estate consisted principally of a fully paid immovable property situated at
W[…] P[…] , registered in her sole name and valued at approximately R1,585 million;
a Honda Jazz motor vehicle valued at approximately R 70 000; a one-half share in
the household contents valued at approximately R 25 000; cash and bank balances
of approximately R 101 263, later reduced by approximately R 91 000, retirement
and investment assets comprising an ABSA Pension Fund of approximately R 1,7
million, a Liberty Life Guaranteed Investment Plan valued at proximately R 416 590,
a living annuity valued at approximately R 402 132, and an ABSA investment
account of approximately R 280 062, from which she derived a modest monthly
income.
[28] The plaintiff therefore had a substantial estate of her own when the parties
divorced. The court a quo accepted the defendant's estate as having a value of
approximately R 14,7 million. The court expressly rejected submissions that the
estate should be valued at a lesser amount.
[29] The estate consisted predominantly of pension interests, investment
portfolios, insurance products and accumulated savings generated during the
defendant's lengthy corporate career. Those assets were built largely from the
defendant's substantial earnings, bonuses and disciplined long -term investment
strategy. Although the defendant owned no immovable property forming part of his
estate, the court correctly observed that the former matrimonial home had been
registered solely in the plaintiff's name notwithstanding the defendant's substantial
financial contributions towards its acquisition. The court treated those contributions
financial contributions towards its acquisition. The court treated those contributions
as donations rather than retained assets.
[30] The court a quo correctly recognised that the defendant's estate could not be
viewed in isolation from the plaintiff's contributions throughout the marriage. Her
support, both direct and indirect, enabled the defendant to devote himself fully to his
employment and to accumulate an estate of considerable value.
10
[31] The practical effect of the redistribution order granted by the court a quo was
significant. An award of 35 percent of the defendant's estate entitled the plaintiff t o
receive capital of approximately R 5,1 million. Her estate would thereby increase
from approximately R 3,95 million to almost R 9 million, while the defendant's estate
would correspondingly reduce from approximately R 14,7 million to approximately
R 9,6 million. This substantial capital transfer would be in addition to the lifelong
maintenance awarded in the plaintiff's favour.
[32] It is readily accepted that the plaintiff did not enjoy the same employment
opportunities as the defendant and that her career progression was considerably
more limited. Accordingly, there was a marked disparity between the parties' earning
capacities, both during the marriage and thereafter. That disparity properly justifies
both a maintenance award and an appropriate redistribution order.
[33] However, the object of s 7(3) of the Act is not to equalise the parties' estates,
nor to confer upon the claimant spouse a windfall. Its purpose is to achieve equity by
recognising contributions made towards the accumulation of the other spouse's
estate. The practical effect of the order approaches an equal division of the parties'
estates; a consequence more closely associated with a marriage in community of
property than with the discretionary redistribution contemplated by section 7(3) of the
Act. This is not what is legally envisaged.
[34] Having regard to the duration of the marriage, the plaintiff's substantial direct
and indirect contributions, the disparity in the parties' earning capacities, the
plaintiff's existing estate valued at approximately R 3.95 million, the defendant's
substantially larger estate, and the lifelong maintenance awarded in her favour,
justice and equity are best achieved by a once- off redistribution payment of R 1
million. Such an award appropriately recognises the plaintiff's contribution without
million. Such an award appropriately recognises the plaintiff's contribution without
conferring a windfall or duplicating the financial benefit already secured through the
maintenance order.
[35] Taking all these factors into account, a fair approach is to recognise the
plaintiff’s contribution by way of a single capital payment that reflects her past
contribution. On this basis, a once‑off payment of R 1 million is a fair and just
11
redistribution under section 7(3) of the Act, as it properly balances the value of each
party’s estate and each party's contribution.
The Maintenance Order
[36] The plaintiff claims spousal maintenance in the amount of R 25 000 ( as
discussed below) . The defendant, as per his evidence, tendered an unequivocal
contribution to lifelong maintenance in the amount of R 18 000.00 per month, with a
CPI increase every year , until she passes away, remarries or cohabits with another
man.
[37] It was argued further that the plaintiff’s claim for spousal maintenance stems
from s 7(2) of the Act, which reads thus:
“In the absence of an order made in terms of subsection (1) with regard to the payment of
maintenance by the one party to the other, the court may, having regard to the existing or
prospective means of each of the parties, their respective earning capacities, financial needs
and obligations, the age of each of the parties, the duration of the marriage, the standard of
living of the parties prior to the divorce, their conduct in so far as it may be relevant to the
break-down of the marriage, an order in terms of subsection (3) and any other factor which
in the opinion of the court should be taken into account, make an order which the court finds
just in respect of the payment of maintenance by the one party to the other for any period
until the death or remarriage of the party in whose favour the order is given, whichever event
may first occur.“
[38] It is common cause that the total amount of expenses that the plaintiff incurs
per month is R 23 502.00. The plaintiff testified further that she was concerned that
she would in future be responsible for expenses not paid by the medical aid, in
addition to the above premium, and that she would not be able to afford such
expenses.
[39] It is also not in dispute that the plaintiff receives a monthly income in the total
amount of R 7 247 (from her pension fund, living annuity, and investment plan). The
amount of R 7 247 (from her pension fund, living annuity, and investment plan). The
defendant submitted that the plaintiff simply alleges that she is entitled to
maintenance in the amount of R 25 000 on the basis that the defendant can afford it,
and that the plaintiff wants to build up capital resources. Having regard to the above,
the plaintiff can survive with the maintenance amount of R 18 000.00 per month.
12
Costs
[40] The trial court was satisfied that the mar ital relationship between the parties
had reached such a state of disintegration that there was no reasonable prospect of
the restoration of a normal relationship between them. The trial court found that the
parties had ceased to live together as husband and wife, that consortium and
intimacy had ended by 2019, that they no longer shared a bed from mid‑ 2020, and
that the d efendant vacated the matrimonial home in April 2021. On these facts,
viewed cumulatively, the court concluded that the marriage had irretrievably broken
down and granted a decree of divorce on that basis, without determining the matter
on considerations of fault or blame.
[41] The trial court went on to order that the defendant is to pay the plaintiffs' costs
of suit, and counsel fees on Scale A.
[42] Section 10 of the Act provides as follows:
“In a divorce action the Court shall not be bound to make an order for costs in favour of the
successful party, but the Court may, having regard to the means of the parties , and their
conduct insofar as it may be relevant, make such order as it considers just, and the Court
may order that the costs of the proceedings be apportioned between the parties.”
[43] In awarding costs , a trial court exercises judicial discretion, and an appeal
court will not readily interfere with that discretion. The power of interference on
appeal is limited to cases of vitiation by misdirection or irregularity, or the absence of
grounds on which a court, acting reasonably, could have made the order in question.
A court of appeal cannot interfere merely on the ground that it would itself have
made a different order.7
[44] The proceedings before the trial court dealt with the decree of divorce, the
Maintenance Order and the Redistribution Order. It is only on the Redistribution
Order that this court differs with the trial court’s judgment by reducing the amount
Order that this court differs with the trial court’s judgment by reducing the amount
payable. In all the circumstances, in making the costs order, it cannot be said that
the trial court misdirected itself or committed an irregularity or acted unreasonably.
This court will therefore not interfere with the costs order made by the trial court.
7 Attorney-General, Eastern Cape v Blom and Others 1988 (4) SA 645 (A).
13
[45] As regards the appeal , I believe this is an appropriate case in which to make
no order as to costs in respect of the appeal.
Order
1. The appeal against the decision of the trial court as regards the Redistribution
Order succeeds. Order 2 of the trial court is set aside and replaced by the
following order –
“(2) A redistribution order is hereby issued in favo ur of the Plaintiff, directing the
Defendant to pay the Plaintiff R 1 000 000 within 3 months of the grant of
this order.”
2. Order 3 of the trial court is amended by the addition of the words “ should the
Defendant predecease the Plaintiff; this order shall survive the death of the
Defendant” as follows –
“(3) The Defendant is ordered to pay spousal maintenance to the Plaintiff in the
amount of R 18,000 per month (in line with CPI) until he reaches retirement
age, whereafter spousal maintenance shall be paid to the Plaintiff in the
amount of R25,000 per month; should the Defendant predecease the
Plaintiff, this order shall survive the death of the Defendant.”
3. There is no order in respect of the costs of this appeal.
_______________________
MALI J
Judge of the High Court
Gauteng Division, Johannesburg
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_______________________
Modiba J
Judge of the High Court
Gauteng Division, Johannesburg
____________________
Mitchell AJ
Acting Judge of the High Court
Gauteng Division, Johannesburg
HEARD ON: 4 MARCH 2026
DECIDED ON: 24 AUGUST 2026
FOR THE APPLICANT: Dr G J Ebersöhn
INSTRUCTING ATTORNEYS: Gerrie Ebersöhn Attorneys Inc.
FOR THE RESPONDENT: Adv. G Olwagen-Meyer
INSTRUCTING ATTORNEY: DPS Attorneys